STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 91-6205
)
JAN A. SALZBERG, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case at Fort Lauderdale, Florida, on February 8, 9, 10, and 11, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Mary B. Radkins, Esquire
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
For Respondent: E. Ross Zimmerman, Esquire
Weinstein, Zimmerman & NussbaumFloor 7880 North University Drive, Third Tamarac, Florida 33321
STATEMENT OF THE ISSUES
This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, a physician specializing in psychiatry, on the basis of allegations that he violated subsections (j), (t), and (x) of Section 458.331(1), Florida Statutes, by engaging in a sexual relationship with one of his psychiatric patients.
PRELIMINARY STATEMENT
Prior to the formal hearing in this case, the Administrative Complaint was amended as follows: At Paragraph 16 the words "a minor" were deleted, and at Paragraph 17 everything after the word "Chapter" was deleted. At the formal hearing on February 8, 9, 10, and 11, 1993, the Petitioner presented the testimony of numerous witnesses, including both fact witnesses and expert witnesses. The Petitioner also offered eighteen exhibits, sixteen of which were received in evidence.
The Respondent testified on his own behalf and also presented the testimony of numerous witnesses, including both fact witnesses and expert witnesses. The Respondent also offered four exhibits, all of which were received in evidence.
At the conclusion of the formal hearing the Respondent moved to dismiss the Administrative Complaint on the grounds that the Petitioner had failed to prove the charges against the Respondent. The Hearing Officer reserved ruling on the motion. The motion is hereby denied.
At the conclusion of the formal hearing it was anticipated that the transcript of the hearing would be prepared by March 15, 1993, and the parties were initially allowed until April 9, 1993, within which to file their proposed recommended orders. The transcript of the formal hearing was filed on March 26, 1993. Thereafter, at the request of the Respondent the deadline for filing proposed recommended orders was twice extended, the final deadline being May 25, 1993. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The Respondent also filed a separate document titled "Final Argument" containing extensive argument in support of the Respondent's position. The parties' post-hearing submissions have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by the parties are contained in the appendix hereto.
By way of introduction to the Findings of Fact which follow, it should be noted that there is conflicting evidence on virtually every disputed material fact and there is conflicting evidence on a multitude of subordinate underlying details. In an effort to lend support to their respective versions of the facts, both parties have directed attention in their proposed findings of fact and/or in their arguments to a multitude of small details. All of such details were considered by the Hearing Officer in making the Findings of Fact which follow, and they have all contributed in one way or another to the resolution of the credibility disputes on the material issues in this case. Nevertheless, most of such details have been omitted from the Findings of Fact as unnecessary to a resolution of the violations charged in the Administrative Complaint.
There is simply no need to repeat all of the sordid details here.
To facilitate an understanding of the basis for the Findings of Fact on the major disputed issues, it is perhaps helpful to summarize here the manner in which some of the more important credibility disputes have been resolved. The testimony of the patient, C.P., has been found to be reliable on all major issues. The testimony of the witness Carol Trick has been found to be reliable on all major issues. The testimony of the Respondent has been found to be lacking in credibility on all major issues. 1/
FINDINGS OF FACT
The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License Number ME 0041587.
The Respondent was employed by the Nova University Community Mental Health Clinic ("Nova Clinic") in Coral Springs, Florida, from about October of 1987 until September 21, 1989. The Respondent was employed by the Nova Clinic to perform initial psychiatric evaluations of Nova Clinic patients and to manage the medication of the Nova Clinic patients who required medication. In this capacity, on May 11, 1988, the Respondent performed an initial psychiatric
evaluation on a Nova Clinic patient named C. P., who was at that time a 17-year- old female patient.
An intake evaluation performed on May 10, 1988, and the Respondent's psychiatric examination on May 11, 1988, reveal that C. P. came to the Nova Clinic with a history of depression and a prior suicide attempt at age 14. She had been hospitalized for the previous month at Fair Oaks Hospital. At the hospital she had received treatment for severe depression which resulted from her obsession with a married high school teacher and the loss of that emotional relationship. When admitted to Fair Oaks Hospital, C. P. had experienced some auditory hallucinations, paranoia, suicidal ideation, and social withdrawal.
She reported a dysfunctional family history and intense feelings of rejection by her divorced parents. The three-year obsession with her high school teacher and the realization that it would go nowhere was the precipitating factor in the depression that led to her hospitalization. C. P. consistently contended that there had never been any inappropriate physical or sexual contact between herself and the teacher who was the object of her obsession, although she had fantasies that such might eventually happen. During her hospitalization at Fair Oaks there was a remission of her psychotic symptoms and of her overt depressive symptoms, and by the time of her discharge she was gaining insight into her relationship with the teacher. Her Axis I discharge diagnosis was "Major depression, single episode, with psychotic features." Her Axis II discharge diagnosis was "Personality disorder NOS (non specified) with borderline and dependent features." Upon discharge from Fair Oaks Hospital she was to continue outpatient psychotherapy at the Nova Clinic.
C. P. began weekly therapy sessions with Dana Bennett, a child therapist at the Nova Clinic, on May 23, 1988, which continued through June 6, 1989. C. P. continued therapy sessions at Nova Clinic with Mary Bertera, a clinical psychologist, from August of 1989 until February of 1990. During her therapy session with Ms. Bennett, C. P. always denied any physical contact between herself and the teacher who had been the object of her obsession.
The only two hallucinations experienced by C. P. during the period of her therapy at Nova Clinic occurred while she was taking Prozac or Stelazine. The hallucinations she described were non-sexual in nature. During the period of her therapy at Nova Clinic, C. P. did not make any suicide attempts.
While C. P. was seeing the Respondent for medical management at the Nova Clinic, she developed a growing attraction for him. She mentioned this to the Respondent and he suggested that she speak to Dana Bennett about her feelings. C. P. followed his suggestion. On several further occasions C. P. again mentioned to the Respondent her growing attraction for him. The Respondent told her that he was also attracted to her, but that because he was her psychiatrist he could not pursue any sort of relationship with her.
On several occasions C. P. asked the Respondent if they could go out for lunch or dinner. The Respondent told her that although he was attracted to her and would like to do so, he could not. Sometime during the fall of 1988 the Respondent had a conversation with Mary Bertera (who was not C. P.'s therapist at that time) during which he discussed his attraction to C. P. During that conversation he mentioned C. P. by name, stated that she had been leaving cards and letters for him, stated that he was attracted to C. P. and that he would not mind going out with C. P.
After an automobile accident on December 12, 1988, C. P. called the Respondent for some medication advice. During the course of that conversation
C. P. asked the Respondent when they would be getting together. His reply was to the effect that she should not give up hope, that he was going away for the holidays, but would talk with her shortly after New Year's Day.
On January 3, 1989, C. P. had a medication management session with the Respondent. Towards the end of their session the Respondent told C. P. that he was getting off work early that evening and asked if she could meet him. She agreed that she would meet him later that same day. At about 7:30p.m. on January 3, 1989, C. P. drove back to the Nova Clinic parking lot, parked next to the Respondent's automobile, and sat in the car she was driving while waiting for the Respondent. Shortly thereafter, the Respondent walked into the parking lot, got into the car with C. P., and C. P. drove the car to Margate Park.
There they shared a bottle of wine C. P. had brought with her. While sitting in the car drinking wine, they kissed for the first time. Then they drove to a restaurant where they had drinks and something to eat. Eventually they drove back to the Nova Clinic parking lot where they sat in the car, talked, kissed, and eventually had sexual intercourse in the car.
The sexual encounter on January 3, 1989, initiated an intimate sexual relationship between C. P. and the Respondent which continued until October 14, 1989. During the period from January to October of 1989, C. P. and the Respondent engaged in sexual intercourse in a variety of settings; at the home of C. P.'s mother, at the home of one of C. P.'s friends when C. P. was house- sitting, at C. P.'s father's house, at the Respondent's rental apartment, at the Respondent's private office before it was open, and at various hotels or motels.
During the time that the Respondent and C. P. were involved in the sexual relationship the Respondent also maintained a social relationship with C.
P. and her family. The Respondent took C. P. out to lunch or dinner on numerous occasions. On numerous occasions the Respondent visited C. P. at her father's house and often picked her up at her father's house to take her out for lunch or dinner. On one occasion the Respondent escorted C. P. to a birthday party held at the home of one of C. P.'s aunts to celebrate the sixteenth birthday of one of C. P.'s cousins.
During the time that the Respondent and C. P. were involved in the sexual relationship they were often openly affectionate in public places. They often hugged and kissed in public places.
During the time that the Respondent and C. P. were involved in the sexual relationship the Respondent gave C. P. gifts of clothing, jewelry, flowers, money, and cards. The gifts of money totaled several hundred dollars.
At various times during the course of the sexual relationship, the Respondent told C. P. that he loved her and discussed future plans for the two of them. On at least one occasion he told her he wanted to divorce his wife and marry C. P. Towards the end of August of 1989 the Respondent told C. P. that he had decided that he could not divorce his wife, primarily because of the Respondent's concerns about the effect a divorce would have on the Respondent's son. C. P. became very angry and upset by the information that the Respondent no longer planned to marry her.
On August 30, 1989, the Respondent admitted to Carol Trick that he had been having a sexual affair with C. P. for the previous eight months. During the course of his conversation with Carol Trick, the Respondent described some details of the sexual affair that are corroborated by other evidence. A few
days later, Carol Trick told the Director of the Nova Clinic that the Respondent had admitted to her that he was having a sexual affair with C. P.
The Respondent and C. P. had a final sexual liaison on October 14, 1989, at a motel in Delray. On C. P.'s birthday, October 27, 1989, the Respondent sent her a gold rope chain and a dozen yellow roses.
Although C. P. had been relatively happy during the spring of 1989, following the termination of the sexual relationship with the Respondent she became very depressed and developed eating disorders. C. P. discontinued therapy at the Nova Clinic and began psychiatric therapy with Joel Klass, M. D., on February 20, 1990. As of the date of the formal hearing, C. P. was still a patient of Dr. Klass. Based at least in part on her experiences with the Respondent, C. P. continues to be depressed and is distrustful of psychologists and psychiatrists. This distrust has impeded her progress in therapy.
Expert medical testimony in this case establishes that sexual intercourse between a psychiatrist and his patient is a clear violation of acceptable standards of care and is explicitly prohibited by psychiatric standards of ethics. Such conduct is a violation and is prohibited even when the psychiatrist functions only in a supervisory or medical management role. Such conduct is a violation and is prohibited even when the sexual activity is initiated by the patient. Any sexual activity between a psychiatrist and a patient violates the mutual trust between the psychiatrist and the patient. There are no circumstances under which sexual activity between a psychiatrist and a patient is appropriate; such conduct is always a departure from acceptable standards of care. A competent psychiatrist should recognize the symptoms of erotic transference in a patient. Where such symptoms are present, if the psychiatrist also feels an erotic interest in the patient the psychiatrist should note the problem in the patient's records, should attempt to deal with it therapeutically, or should transfer the patient to another therapist. Social entanglement between a psychiatrist and a patient of the type described in Paragraph 11 of these findings of fact is also a departure from acceptable standards of care.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):
We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier
of fact a firm belief or conviction, without
hesitancy, as to the truth of the allegations sought to be established.
See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).
At all times relevant to this proceeding, Section 458.329, Florida Statutes, read as follows: 2/
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 the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.
At all times relevant to this proceeding, Section 458.331(1), Florida Statutes, read as follows, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified 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. . . .
At all times relevant to this proceeding, Section 458.331(2), Florida Statutes, read as follows, in pertinent part:
When the board finds any person guilty of any of the grounds set forth in subsection (1), . . . it may enter an order imposing one or more of the following penalties:
Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
Issuance of a letter of concern.
Corrective action.
Refund of fees billed to and collected from the patient.
Count One of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(j), Florida Statutes, "by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity." This violation has been proved by clear and convincing evidence. In this regard it is important to note that there is a statutory presumption that patients are incapable of giving free, full, and informed consent to sexual activity with their physicians. Therefore, the fact that the patient may have been a willing or even an enthusiastic participant to the sexual activity is no defense to a violation of Section 458.331(1)(j), Florida Statutes.
Count Two of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(t), Florida Statutes, by "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." This violation has been proved by clear and convincing evidence. The expert witnesses who testified in this case were unanimously of the opinion that it is a departure from acceptable care, skill, and treatment for a physician to engage in sexual activity with a psychiatric patient under the conditions and circumstances proved in this case.
Count Three of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(x), Florida Statutes, "by violating any provision of this chapter," and specifically references a violation of Section 458.329, Florida Statutes, which both defines and prohibits sexual misconduct in the practice of medicine. This violation has been proved by clear and
convincing evidence. The Respondent's sexual activities with the subject patient were clearly "outside the scope of the practice or the scope of generally accepted examination or treatment of the patient," as defined and prohibited by Section 458.329, Florida Statutes.
The violations proved in this case constitute very serious misconduct by the Respondent and, therefore, warrant a very severe penalty. The record in this case does not contain any mitigating circumstances and it does contain several aggravating circumstances. Among the aggravating circumstances are the young age of the patient, the harm to the patient's treatment progress, and the fact that the sexual episodes were repeated and recurring over a period of several months.
On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case concluding that the Respondent is guilty of all three of the violations charged in the Administrative Complaint and imposing a penalty consisting of revocation of the Respondent's license and an administrative fine in the amount of $5,000.00 for each of the three violations, for a total administrative fine of $15,000.00.
DONE AND ENTERED this 29th day of June, 1994, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH, 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 29th day of June, 1994.
ENDNOTES
1/ At the conclusion of the formal hearing in this case the Hearing Officer was convinced, and after protracted and through review of the evidence continues to be convinced, that the Respondent presented blatantly false testimony on material issues during the course of his testimony at the formal hearing.
2/ Unless otherwise noted, all citations to the Florida Statutes are to the Florida Statutes (1989), which appears to be the version applicable to the events alleged in the Administrative Complaint. There have been several amendments to Chapter 458, Florida Statutes, since 1989, none of which are material to the issues in this case.
APPENDIX
The following are the specific rulings on all proposed findings of fact submitted by all parties. As noted in the Preliminary Statement and in some of the endnotes, this is a case in which there is a great deal of conflicting evidence.
Findings submitted by Petitioner:
Paragraphs 1 through 4: Accepted.
Paragraphs 5 and 6: Accepted in substance, but with numerous subordinate and unnecessary details omitted.
Paragraph 7: Rejected as subordinate and unnecessary details.
Paragraphs 8 through 11: Rejected as subordinate and unnecessary details, or as irrelevant.
Paragraphs 12 and 13: Accepted in substance.
Paragraphs 14 through 16: Rejected as subordinate and unnecessary details.
Paragraph 17: Accepted in substance with some subordinate and unnecessary details omitted.
Paragraphs 18 through 21: Rejected as subordinate and unnecessary details. Paragraph 22: Accepted.
Paragraphs 23 through 25: Rejected as subordinate and unnecessary details. Paragraphs 26 through 28: Accepted.
Paragraphs 29 and 30: Rejected as subordinate and unnecessary details. Paragraphs 31 through 33: Accepted.
Paragraph 34: Rejected as subordinate and unnecessary details. Paragraph 35: Accepted.
Paragraphs 36 through 40: Rejected as subordinate and unnecessary details. Paragraphs 41 through 43: Accepted.
Paragraph 44: Rejected as subordinate and unnecessary details. Paragraph 45: Accepted.
Paragraphs 46 and 47: Rejected as subordinate and unnecessary details.
Paragraphs 48 and 49: Accepted in substance with some subordinate and unnecessary details omitted.
Paragraphs 50 through 52: Rejected as subordinate and unnecessary details. Paragraph 53: Accepted.
Paragraphs 54 through 56: A few of these details have been accepted, but most have been rejected as subordinate and unnecessary.
Paragraphs 57 and 58: Accepted in substance with some subordinate and unnecessary details omitted.
Paragraphs 59 through 64: Rejected as subordinate and unnecessary details.
Paragraph 65: Accepted in substance, but with some subordinate and unnecessary details omitted.
Paragraphs 66 through 76: Rejected as subordinate and unnecessary details. Paragraphs 77 and 78: Accepted.
Paragraph 79: Rejected as subordinate and unnecessary details. Paragraphs 80, 81, and 83: Accepted in substance.
Paragraphs 82 and 84: Rejected as subordinate and unnecessary details. Paragraphs 85 through 88: Accepted.
Paragraphs 89 through 97: Rejected as subordinate and unnecessary details. Paragraph 98: Accepted in substance.
Paragraphs 99 through 101: Rejected as subordinate and unnecessary details.
Paragraph 102: Accepted in substance.
Findings submitted by Respondent:
Paragraphs 1 through 4: Accepted.
Paragraph 5 (Including its subparagraphs A through I): This paragraph and all of subparagraphs A through H have been rejected because they are primarily summaries of and commentaries upon the testimony offered by the Petitioner, rather than proposed findings of fact. Summaries of testimony are simply not proposed findings of fact. Further, many of the summaries are incomplete and many are accompanied by conclusions that are contrary to the greater weight of the evidence. Subparagraph I is rejected as constituting conclusions or argument, rather than proposed findings of fact. Further, the conclusions expressed in subparagraph I are contrary to the greater weight of the evidence.
COPIES FURNISHED:
Mary B. Radkins, Esquire Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Ross Zimmerman, Esquire Weinstein, Zimmerman & Nussbaum Third Floor
7880 North University Drive Tamarac, Florida 33321
Jack McRay, General Counsel General Counsel
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Marm Harris Executive Director Board of Medicine
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street 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.
================================================================= AGENCY ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
BEFORE THE BOARD OF MEDICINE
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF MEDICINE
Petitioner,
DPR CASE NO. 90-05727
vs. DOAH CASE NO. 91-6205
JAN A. SALZBERG, M.D.,
Respondent.
/
ORDER OF REMAND
THIS MATTER Board of Medicine at its meeting of August 7, 1994, Orlando, Florida on Respondent's Motion to Remand. Respondent asserts the discovery of new evidence and further asserts its relevance to the proceedings held at the Division of Administrative Hearings on February 8-II, 1993, before Hearing Officer Michael M. Parrish. The Board heard oral argument from the parties including characterizations of the evidence by counsel for Respondent. 1/ The Board did not review the evidence and did not make any determination as to credibility, weight, relevance or appropriateness of such evidence. However, because the Recommended Order in this cause provides for revocation of licensure, the Board determined it appropriate to provide an opportunity for the alleged new evidence to be considered.
Over the objection of Petitioner, the Board decided to remand this cause to Hearing Officer Parrish for the purpose of examining the new evidence alleged by Respondent and determining what if any weight or creditability it should receive in the resolution of this cause.
THEREFORE, it is ORDERED that this matter be REMANDED to the Division of Administrative Hearings and Hearing Office Michael M. Parrish for the purpose of considering Respondent's new evidence, as deemed appropriate by the Hearing Officer, and then making such changes to the Recommended Order that the Hearing Officer determines may be necessary.
DONE AND ORDERED this 11th day of August, 1994.
BOARD OF MEDICINE
MARGARET S. SKINNER, ACTING CHAIRPERSON
ENDNOTE
1/ Respondent submitted supplemental information in support of his motion. The Board declined to consider the supplemental material, but did allow its proffer into the record. The motion, the response, the additional information, and the motion to strike the additional information are attached.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by U.S. Maid to E. Ross Zimmerman, 7797 North University Drive, Suite 108, Tamarac, Florida 33321, Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, DeSoto Building, Tallahassee, Florida 32399-1550, and by hand delivery to Albert Peacock, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 this day of ,* 1994. *(Document filed with DOAH is undated.)
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Jan A. Salzberg, M.D., 7301 N. University Dr., Tamarac, Florida 33300, and to E. Ross Zimmerman, 7797 N. University Dr., Suite 108, Tamarac, Florida 33321, and to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Pkwy, DeSoto Bldg., Tallahassee, Florida 32399-1550, and by hand delivery to Albert Peacock, Department of Business and Professional Regulation, 1940 N. Monroe St, Tallahassee, Florida 32399-0792 on or before 5:00 P.M.., this 22nd day of August, 1994.
Marm Harris, Ed.D. Executive Director Board of Medicine
Attachments as noted in the 8-11-94 ORDER OF REMAND Endnote
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,
Petitioner,
DPR CASE NO. 90-05727
vs. DOAH CASE NO. 91-6205
JAN A. SALZBERG, M.D.,
Respondent.
/
MOTION FOR REMAND OR TO REOPEN CASE FOR THE PURPOSE OF INTRODUCING IMPORTANT NEW EVIDENCE
COMES NOW the Respondent, JAN A. SALZBERG, M.D., by and through his undersigned attorney, and files this his Motion for Remand or to Reopen Case for the Purpose of Introducing Import ant New Evidence before the Hearing Officer, and as grounds therefore would state as follows:
Undersigned counsel has become aware of important new evidence which counsel believes would significantly affect the outcome of the hearing if the Hearing Officer was provided an opportunity to hear same.
The sum and substance of that evidence is as follows:
Dr. Joel Klass was the treating physician for C.P. and testified on behalf of the Department of Professional Regulation at the hearing, which resulted in the issuance of the Recommendation of the Hearing Officer. That Recommendation has not as yet been ruled upon by the Board of Medicine;
Within the past thirty days Dr. Klass advised undersigned counsel that after his doctor/patient relationship with C.P. ended, C.P. attempted to involve another patient of Dr. Klass's in a scheme to pursue fictitious charges of sexual impropriety against Dr. Klass for monetary gain. Dr. Klass will not disclose the name of the other patient until he can obtain that patient's consent, but believes that consent will be forthcoming;
Dr. Klass indicated to undersigned counsel that C.P. sent him a letter alluding. to threats to allege unprofessional conduct on his part in an attempt to cause him to reduce his fee;
Dr. Klass has advised undersigned counsel that he believes C.P. has followed him to his home to locate his place of residence;
Dr. Klass has indicated that C.P. has made false claims to him of inappropriate lunches, dinners and a relationship between herself and Dr. Klass which never existed;
This is a clear indication of C.P.'s willingness to lie for financial gain and shows a strong pattern of conduct on the part of C.P. which adds great weight to the claim of Respondent, DR. SALZBERG, and the expert witnesses who testified on his behalf at the hearing;
Among other individuals called as experts on behalf of DR. SALZBERG was Dr. Richard Maulion. Dr. Maulion has devoted a substantial portion of his practice to the treatment of borderline personality disorders. Dr.
Maulion concurred with the other experts called both on behalf of the Department and the Respondent in the opinion that C.P. was suffering from a borderline personality disorder with deep seated psychotic features as well as the mental illness known as erotomania. As such, C.P. must be seen as a highly manipulative, intelligent, and dangerous individual who likely fantasized her relationship with DR. SALZBERG, believes her own fantasy, and was overcome with
borderline rage in her desire to destroy DR. SALZBERG when the fantasy refused to become reality.
Dr. Maulion also testified that individuals who suffer from C.P.'s condition are frequently known to follow the objects of their fantasized relationships and surreptitiously obtain information and documents disclosing information about their victims;
At the hearing Dr. Maulion indicated that after reviewing C.P.'s medical history, he would not be at all surprised if at a later date C.P. made allegations against Dr. Klass, similar to those she made against DR. SALZBERG. It is clear now from this newly discovered evidence that C.P. is doing just that.
Undersigned would proffer to the Board that if permitted to testify, Dr. Klass would acknowledge as true each of the allegations set forth in paragraphs 2.A through 2.E.
This evidence was not available at the time of the hearing; and even with due diligence, could not have been available at the time of the hearing simply because it did not exist. It was not until after the hearing had long concluded that C.P. first made these threats to Dr. Klass and sought to involve a patient of Dr. Klass's in her totally false accusations.
It is respectfully submitted that the aforedescribed evidence should be heard by the Hearing Officer in that it affords clear substantiation of the Respondent's position in this case.
Undersigned counsel has conferred with Al Peacock, counsel for the DPR, who has indicated that this evidence may, indeed, be relevant and that he will take no position on whether or not this case should be reopened for the purpose of receiving this new evidence.
WHEREFORE, it is respectfully prayed that the Board of Medicine remand this case to the Hearing Officer for the purpose of reopening the case to take new evidence on the issue set forth herein.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to: ALBERT PEACOCK, ESQUIRE, Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 and DR. MARM HARRIS, Executive Director, Board of Medicine Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, this # day of July, 1994.
Respectfully Submitted,
E. ROSS ZIMMERMAN & ASSOCIATES, P.A. Attorneys for Respondent
7797 North University Drive Suite 108
Fla. Bar No.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH CARE ADMINISTRATION,
Petitioner,
DOAH CASE NO. 91-6205
vs. ACHA CASE NO. 90-05727
JAN A. SALZBERG, M.D.,
Respondent.
/
COMES NOW, the Petitioner, the Agency for Health Care Administration, and files this response to the Respondent's Motion to Remand or to Reopen Case for the Purpose of Introducing New Evidence.
The Respondent requests to be allowed to present additional information in the above-referenced case. Such information is anticipated to be that Patient C.P. has alleged unprofessional conduct on the part of Dr. Klass, has followed Dr. Klass home, and other such conduct consistent with her psychological disorder.
As stated in Respondent's motion, it was discussed at hearing that C.P. might exhibit such conduct and make such allegations against her subsequent treating physician. Thus, such conduct was expected and does not constitute new evidence that needs to be considered by the hearing officer or by the Board. In fact, C.P. had already made allegations of abuse against Dr. Klass at the time of the hearing. (T. pg. 737-738, 812-813).
Despite the testimony by Dr. Maulion and the Respondent's claims that Patient C.P. may have made allegations of improper conduct against Dr. Klass, clear and convincing evidence was presented by numerous witnesses that Respondent had had an improper sexual relationship with Patient C.P., and this was the evidence relied upon by the hearing officer in determining whether Respondent had sexual relations with C.P.
Whether or not Patient C.P. has alleged improper conduct by Dr. Klass does not detract from or change the fact that Respondent exerted improper sexual influence over one of his patients, entering into sexual relations with her, buying her gifts, and taking her to lunch or dinner. (R.O. pg 7-9). Whether
C.P. is alleging improper conduct by Dr. Klass does not detract from or change the fact that Respondent admitted to having a sexual affair with C.P. for eight months. (R.O. pg. 9).
In fact, the inappropriate conduct by Respondent may have increased Patient C.P.'s tendency to display such conduct, rather than helped her condition as was originally intended. The hearing officer acknowledged that "[b]ased at least in part on her experiences with the Respondent, C.P. continues to be depressed and is distrustful of psychologists and psychiatrists." (R.O. pg. 9).
Generally, courts disfavor motions to reopen a case based on new evidence. Jerrico, Inc. v. Washington National Insurance Co., 400 So.2d 1316, 1319 (Fla. 5th DCA), rev. denied, 411 So.2d 282 (Fla. 1981). Consideration of such a motion is clearly within the sound discretion of the Board. McDonald v. Pickens, 544 So.2d 261 (Fla. 1st DCA), rev. denied, 533 So.2d 1165, Roberto v. Allstate Insurance Co., 457 So.2d 1148 (Fla. 3d DCA 1984). For rehearing or a new trial or additional information to be submitted, the courts generally require
that it must appear that the evidence is such as will probably change the result if a new trial is granted; (2) that [the evidence] has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue, and
(5) that it is not merely cumulative or impeaching.
Dade National Bank v. Kay, 131 So.2d 24, 26 (Fla. 3d DCA), cert. denied, 135 So.2d 746 (Fla. 1961); see also, Bray v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1990).
The evidence Respondent seeks to admit does not meet the requirements listed above. First, as discussed in Paragraph 2 above, the evidence at issue is not new, but was discovered at the hearing, in that it was foreseen that C.P. would make such allegations against her subsequent treating physician, and that
C.P. had made such allegations against that physician. Second, as discussed in Paragraph 4, the evidence is not material to the issue in this case, whether or not Respondent had improper sexual relations with a patient. Third, the evidence the Respondent is attempting to present is intended and would serve only to impeach the credibility of C.P., and such evidence is traditionally not allowed after the close of the hearing or proceeding.
In summary, the evidence presented at the hearing demonstrated that
C.P. might exhibit behavior consistent with that alleged in the Respondent's Motion to Remand, and whether C.P. has in fact exhibited that behavior does not tend to prove or disprove whether in this case, Respondent is guilty of sexual misconduct. The evidence the Respondent is attempting to introduce does not conflict with the testimony of C.P. that Respondent had sexual relations with her, does not conflict with the testimony of Carol Trick, to whom Respondent admitted having an affair with C.P., and does not conflict with the physical evidence admitted at the hearing, including receipts from gifts, and credit card statements corroborating C.P.`s allegations that Respondent took her to hotels and bought her gifts. The evidence sought to be admitted would only serve to impeach the testimony of C.P., which is not a sufficient reason for reopening a hearing.
WHEREFORE, for the reasons listed above, the Agency believes that the information the Respondent seeks to present would not affect the outcome of the hearing, as it is not probative of whether Respondent had sexual relations with
C.P. and therefore not relevant to these proceedings, and the Agency therefore requests that the case not be remanded or reopened to submit the new evidence the Respondent seeks to present.
Respectfully submitted,
Monica L. Felder Florida Bar No. 986283
Counsel for Agency for Health Care Administration
Dept. of Business and Professional Regulation
1940 North Monroe St., Suite 60
Tallahassee, Florida 32399-0792
(904) 488-0062
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing has been
furnished by U.S. Mail to E. Ross Zimmerman, 7797 North University Drive, Suite 108, Tamarac, Florida 33321, this 26th day of July, 1994.
Monica L. Felder
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,
Petitioner,
DOAH CASE NO.:91-6205
vs. DPR CASE NO. :90-05727
JAN A. SALZBERG, M.D.,
Respondent.
/
ADDITIONAL INFORMATION IN SUPPORT OF MOTION FOR REMAND OR TO REOPEN CASE FOR THE
PURPOSE OF INTRODUCING IMPORTANT NEW EVIDENCE
COMES NOW the Respondent JAN A. SALZBERG, M.D., by and through his undersign attorney, and files this Additional Information in Support of Motion for Remand or to Reopen Case for the Purpose of Introducing Important New
Evidence before the Hearing Officer, and as grounds therefore would state as follows:
l. On the 3rd day of August, 1994, undersigned counsel communicated with Dr. Joel Klass. Dr. Klass advised that he believed that since he had testified as a witness on behalf of C.P., since she is no longer a patient of his and has not been a patient in excess of one year, that he was permitted to disclose the various information referred to in our Motion to Remand and Reopen
In addition to the information he provided me, which formed the basis of our Motion to Reopen, Dr. Klass has. advised that it important to recognize that C.P. is not a sick and helpless woman, but an extremely exploiting, conniving and manipulative person who is very adept at using her illness to exploit others. Her illness has marked sociopathic traits, and Dr. Klass believes most definitely that C.P. is looking to exploit others by use of the legal system.
This definitely brings up the possibility that this incident with Dr. Salzberg happened or, at the very least, that this incident was a setup. Dr. Klass recited to me that in addition to the things alleged in our previous motion, C.P frequently called him and would say, "If you don't meet me at my house I will kill myself"; that on one occasion she appeared in his office and managed to extract from his staff the location of where he was eating lunch and then showed up at the restaurant he was eating at; and that on one occasion when
C.P. has purchased a new car, she begged him to come into the car with her so she could show it to him and drive him around the parking lot. Subsequently, she advised him that she would use the restaurant and car incidents against him in legal proceeding, similar to what she did to Dr. Salzberg.
3. After communicating this information to undersigned counsel, undersigned counsel requested that Dr. Klass provide an Affidavit which would be submitted to the Board. Dr. Klass reaffirmed that everything he had told undersigned counsel was the truth but that he was reluctant to sign an Affidavit since he has received conflicting theories as to whether or not he is permitted to release this information. While he firmly believes he's entitled to release this information under oath, he would request advise from either the Board or the DPR; and in that regard has provided the following telephone numbers where the Board may communicate with him telephonically on Sunday, August 7th, at 1:00 PM. Office Back Line: 305-961-1512 Home: 305-987-0353
WHEREFORE, it is respectfully prayed that the Board of Medicine take the aforementioned additional information into consideration; advise Dr. Klass telephonically of his rights, and remand this case to the Hearing Officer for the purpose of reopening the case to take new evidence.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to :ALBERT PEACOCK, ESQUIRE, Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 and Dr. Marms Harris, Executive Director, Board of Medicine Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, this 3rd day of August, 1994.
Respectfully Submitted,
E. ROSS ZIMMERMAN & ASSOCIATES, P.A. Attorneys for Respondent
7797 North University Dr.,Suite 108
Tamarac, FL 3321
Telephone (305) 722-9900
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
DEPARTMENT FOR HEALTH CARE ADMINISTRATION,
Petitioner,
DOAH CASE NO.: 91-6205
vs. DPR CASE NO.: 90-05727
JAN A. SALZBERG, M.D.,
Respondent.
/
PETITIONER'S MOTION TO STRIKE
COMES NOW the Petitioner, by and through its undersigned counsel, and hereby responds to the Respondent's Additional Information in Support of Motion for Remand or to Reopen Case for the Purpose of Introducing Important New Evidence and states as follows:
The Respondent has failed to state any "additional information" in this motion. He has simply restated what he alleged in his Motion for Remand filed on July 26, 1994. The statements that the Respondent has set forth in his motion do not even amount to hearsay and should not be considered.
The Respondent is attempting to use the back door to bring in "evidence" to impeach the patient. All issues of credibility of witnesses were fully addressed at the Formal Hearing. The Hearing Officer found the testimony of the patient to be credible and the Respondent's testimony to be credible. The Respondent is trying to bring in "facts" that occurred subsequent to the hearing. The Respondent should not be allowed to continue to make cheap and desperate attempts at attacking that which has already been addressed.
WHEREFORE, Petitioner respectfully requests that the document be stricken.
Respectfully submitted,
Francesca Plendl Senior Attorney Florida bar No. 07696
Dept. of professional Regulation 1940 N. Monroe St., Ste. 60
Tallahassee, Florida 32399-0792
(904)488-0062
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to E. Ross Zimmerman, 7797 North University Drive, Suite 108, Tamarac, Florida 3321, this 4th day of August, 1994.
Francesca Plendl Senior Attorney
================================================================= MOTION TO HEARING OFFICER TO REOPEN CASE FOR THE PURPOSE
OF INTRODUCING IMPORTANT NEW EVIDENCE
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 91-6205
) DPR CASE NO. 90-05727
JAN A. SALZBERG, M.D. )
)
Respondent. )
)
MOTION TO HEARING OFFICER TO REOPEN CASE FOR THE PURPOSE OF INTRODUCING IMPORTANT NEW EVIDENCE
COMES NOW the Respondent, JAN A. SALZBERG, M.D., by and through his undersigned attorney, and files this his Motion for to Hearing Officer to Reopen Case for the Purpose of Introducing Important New Evidence before the Hearing Officer, and as grounds therefore would state as follows:
On or about the 7th day of August, 1994, the Florida Board of Medicine heard argument of counsel in the above styled case and, over objection of the Petitioner, the Agency for Health Care Administration, issued an Order remanding this cause to the Hearing Officer for the purpose of examining the new evidence sought to be introduced by Respondent, JAN SALZBERG.
Undersigned counsel has become aware of important new evidence which counsel believes would significantly affect the outcome of the hearing if the Hearing Officer was provided an opportunity to hear same.
The sum and substance of that evidence is as follows:
Dr. Joel Klass was the treating physician for C.P. and testified on behalf of the Department of Professional Regulation at the hearing, which resulted in the issuance of the Recommendation of the Hearing Officer. That Recommendation has not as yet been ruled upon by the Board of Medicine;
Recently, Dr. Klass advised undersigned counsel that after his doctor/patient relationship with C.P. ended, C.P. attempted to involve another patient of Dr. Klass's in a scheme to pursue fictitious charges of sexual impropriety against Dr. Klass for monetary gain. Dr. Klass will not disclose the name of the other patient until he can obtain that patient's consent, but believes that consent will be forthcoming;
Dr. Klass indicated to undersigned counsel that C.P. sent him a letter alluding to threats to allege unprofessional conduct on his part in an attempt to cause him to reduce his fee;
Dr. Klass has advised undersigned counsel that he believes C.P. has followed him to his home to locate his place of residence;
Dr. Klass has indicated that C.P. has made false claims to him of inappropriate lunches, dinners and a relationship between herself and Dr. Klass which never existed;
Dr. Klass will testify that C.P. frequently called him and would say, "If you don't meet me at my house I will kill myself"; that on one occasion she appeared in his office and managed to extract from his staff the location of where he was eating lunch and then showed up at the restaurant he was eating at; and that on one occasion when C.P. had purchased a new car, she begged him to come into the car with her so she could show it to him and drive him around the parking lot. Subsequently, she advised him that she would use the restaurant and car incidents against him in a legal proceeding, similar to what she did to Dr. Salzberg.
This is a clear indication of C.P.'s willingness to lie for financial gain and shows a strong pattern of conduct on the part of C.P. which
adds great weight to the claim of Respondent, DR. SALZBERG, and the expert witnesses who testified on his behalf at the hearing;
Among other individuals called as experts on behalf of DR. SALZBERG was Dr. Richard Maulion. Dr. Maulion has devoted a substantial portion of his practice to the treatment of borderline personality disorders. Dr. Maulion concurred with the other experts called both on behalf of the Department and the Respondent in the opinion that C.P. was suffering from a borderline personality disorder with deep seated psychotic features as well as the mental illness known as erotomania. As such, C.P. must be seen as a highly manipulative, intelligent, and dangerous individual who likely fantasized her relationship with DR. SALZBERG, believes her own fantasy, and was overcome with borderline rage in her desire to destroy DR. SALZBERG when the fantasy refused to become reality.
Dr. Maulion also testified that individuals who suffer from C.P.'s condition are frequently known to follow the objects of their fantasized relationships and surreptitiously obtain information and documents disclosing information about their victims;
At the hearing Dr. Maulion indicated that after reviewing C.P.'s medical history, he would not be at all surprised if at a later date C. P. made allegations against Dr. Class, similar to those she made against DR. SALZBERG. It is clear now from this newly discovered evidence that C.P. is doing just that.
Undersigned would proffer to the Hearing Officer that if permitted to testify, Dr. Klass would acknowledge as true each of the allegations set forth in paragraphs 2.A through 2.F.
If permitted to reopen this case, the undersigned would also introduce the testimony of a member of Dr. Klass's support staff to additionally support the allegations contained herein and may be able to produce the individual who reported C.P.'s intentions to Dr. Klass.
This evidence was not available at the time of the hearing; and even with due diligence, could not have been available at the time of the hearing simply because it did not exist. It was not until after the hearing had long concluded that C.P. first made these threats to Dr. Klass and sought to involve a patient of Dr. Klass's in her totally false accusations.
It is respectfully submitted that the aforedescribed evidence should b heard by the Hearing Officer in that it affords strong substantiation of the Respondent's position of this case. Further, it is respectfully submitted that this evidence is material and highly relevant to the issues presented in this case.
WHEREFORE, it is respectfully prayed that the Hearing Officer reopen this case to hear new evidence on the issues set forth herein.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to: ALBERT PEACOCK, ESQUIRE, Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 this 27th day of September, 1994.
Respectfully Submitted,
E. ROSS ZIMMERMAN & ASSOCIATES, P.A. Attorneys for Respondent
7797 North University Drive Suite 108
Tamarac, Florida 33321
Telephone (305) 722-9900
By: E. ROSS ZIMMERMAN, ESQUIRE
Fla. Bar No. 22712
=================================================================
DOAH ORDER ON REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 91-6205
)
JAN A. SALZBERG, M.D., )
)
Respondent. )
)
ORDER ON REMAND
On August 11, 1994, the Board of Medicine issued an Order of Remand in this case. The Order of Remand includes the following language regarding the nature and scope of the remand:
Over the objection of Petitioner, the Board decided to remand this cause to Hearing Officer Parrish for the purpose of examining the new evidence alleged by Respondent and determining what if any weight or creditability it should receive in the resolution of this cause.
THEREFORE, it is ORDERED that this matter be REMANDED to the Division of Administrative Hearings and Hearing Officer Michael M. Parrish for the purpose of considering Respondent's new evidence, as deemed appropriate by the Hearing Officer, and then making such changes to the Recommended Order
that the Hearing Officer determines may be necessary.
On August 30, 1994, a conference was conducted by telephone conference call for the purpose of establishing procedures for these proceedings on remand. Following that conference, the Hearing Officer issued an order on September 1, 1994, which included the following:
By no later than October 1, 1994, the Respondent shall file with the Hearing Officer and serve on the Petitioner a motion to reopen the record in this case. The motion shall describe with specificity the substance of all testimony the Respondent seeks to offer if the record is reopened. The motion shall also describe with specificity the substance of the information in all exhibits the Respondent seeks to offer if the record is reopened, or a copy of any such exhibit shall be filed with the motion.
That by no later than October 15, 1994, the Petitioner may file a written response to the motion to reopen the record. The response shall set forth all objections the Petitioner may have to the testimony and exhibits the Respondent seeks to introduce if the record is reopened. Arguments and citations to authority in support of any objections shall be included in the response.
By no later than October 31, 1994, the Respondent may file a written reply to the Petitioner's response. Arguments and citations to authority in support of the admissibility of
any objected-to proposed evidence shall be included in the reply.
The order of September 1, 1994, also provided for the scheduling of a later opportunity for oral argument on any objections to the evidence the Respondent seeks to offer if the record is reopened.
On September 27, 1994, the Respondent served a document titled Motion To Hearing Officer To Reopen Case For The Purpose Of Introducing Important New Evidence. The new evidence the Respondent seeks to introduce was described as follows at subparagraphs A. through F. of paragraph 3 and in two following paragraphs, both of which were numbered as paragraph 4:
The sum and substance of that evidence is as follows:
Dr. Joel Klass was the treating physician for C. P. and testified on behalf of the Depart- ment of Professional Regulation at the hearing, which resulted in the issuance of the Recommendation of the Hearing Officer. That
Recommendation has not as yet been ruled upon by the Board of Medicine;
Recently, Dr. Klass advised undersigned counsel that after his doctor/patient relationship
with C. P. ended, C. P. attempted to involve another patient of Dr. Klass's in a scheme to pursue fictitious charges of sexual impropriety against
Dr. Klass for monetary gain. Dr. Klass will not disclose the name of the other patient until he can obtain that patient's consent, but believes that consent will be forthcoming;
Dr. Klass indicated to undersigned counsel that C. P. sent him a letter alluding to threats to allege unprofessional conduct on his part in an attempt to cause him to reduce his fee;
Dr. Klass has advised undersigned counsel that he believes C. P. has followed him to his home to locate his place of residence;
Dr. Klass has indicated that C. P. has made false claims to him of inappropriate lunches, dinners and a relationship between herself and Dr. Klass which never existed;
Dr. Klass will testify that C. P. frequently called him and would say, "If you don't meet me at my house I will kill myself"; that on one occasion she appeared in his office and managed to extract from his staff the location of where he was eating lunch and then showed up at the restaurant he was eating at; and that on one occasion when C. P. had purchased a new car, she begged him to come into the car with her so she could show it to him and drive him around the parking lot. Subsequently, she advised him that she would use the restaurant and car incidents against him in a legal proceeding, similar to what she did to Dr. Salzberg.
* * *
Undersigned would proffer to the Hearing Officer that if permitted to testify, Dr. Klass would acknowledge as true each of the allegations set forth in paragraphs 3.A through 3.F.
4. If permitted to reopen this case, the under- signed would also introduce the testimony of a member of Dr. Klass's support staff to additionally support the allegations contained herein and may be able to produce the individual who reported C. P.'s intentions to Dr. Klass.
On October 13, the Petitioner served a document titled Petitioner's Response To Respondent's Motion To Remand. In its response the Petitioner opposes reopening of the record on several grounds. Those grounds include the assertion, in paragraph 6 of the response, that "the evidence Respondent seeks to admit, even if proven, would not change the outcome of the case." The response also asserts that the Respondent's motion does not meet all of the criteria established by prevailing case law for reopening a case on the grounds of newly discovered evidence. Further, the response asserts that some, if not all, of the proposed new testimony from Dr. Klass would be inadmissible on the
grounds that it violated the psychotherapist-patient privilege recognized at Section 90.503, Florida Statutes.
On October 31, 1994, the Respondent served a document titled Respondent's Argument In Rebuttal To Petitioner's Response To Motion To Remand. The Respondent's rebuttal document contains argument that addresses the several grounds on which the Petitioner opposes reopening of the record.
On March 13, 1995, the Hearing Officer heard oral argument by means of a telephone conference call on all issues raised in the documents described above. Upon careful consideration of the Respondent's motion and the arguments of counsel for the parties, the Hearing Officer has concluded that the Respondent's motion to reopen the record should be denied and that the case should be decided on the basis of the record as it existed at the time of issuance of the Recommended Order in this case. The reasons for this conclusion are set forth below.
In reaching the ultimate conclusion that the motion should be denied, all doubts regarding the issues raised by the motion and the response to the motion have been resolved in favor of the Respondent's position. In this regard, the Hearing Officer has made certain assumptions which should be clearly stated. The first of such assumptions is that, if called to present additional testimony, Dr. Klass would testify to the matters described in subparagraphs A. through F. of paragraph 3 of the Respondent's motion (those subparagraphs are quoted above in paragraph 3 of this order), and that Dr. Klass' testimony in that regard would be accepted as truthful. 1/ The Hearing Officer has also assumed, without deciding, that Dr. Klass' testimony in that regard would not be barred by the psychotherapist-patient privilege. 2/
The criteria for reopening the record or for granting a rehearing or new trial are described as follows in Bray v. Electronic Door-Lift, Inc., 558 So.2d 43 (Fla. 1st DCA 1989), at page 47: 3/
Rehearing or new trial is warranted where (1) it appears that the evidence is such that will probably change the result if a new trial is granted, (2) the evidence has been discovered
since the trial, (3) the evidence could not have been discovered before the trial by the exercise of due diligence, (4) the evidence is material to the issue, and (5) the evidence is not merely cumulative or impeaching. Dade National Bank of Miami v. Kay, 131 So.2d 24, 26 (Fla. 3d DCA), cert denied, 135 So.2d 746 (Fla. 1961).
Although the Respondent's motion fails to specify the dates of the events it seeks to have Dr. Klass testify about, the motion does assert, at paragraph 5: "It was not until after the hearing had long concluded that C. P. first made these threats to Dr. Klass and sought to involve a patient of Dr. Klass's in her totally false accusations." Accepting these assertions at face value, the Respondent's motion satisfies the second and the third of the criteria quoted above. The Respondent's motion also appears to satisfy the fourth criteria, inasmuch as the proposed new evidence appears to be the type of evidence contemplated by Section 90.404(2)(a), Florida Statutes. For reasons explained below, the motion fails to satisfy the other two criteria.
Directing attention to the first of the criteria quoted above, the motion in this case is insufficient because the new evidence the Respondent seeks to offer would not change the result in this case if it were to be received and considered in light of the evidence that was received at the formal hearing. This is due to the fact that, separate and apart from the testimony of
C. P. (which is the only testimony on which the proposed new evidence might cast any doubt), the evidence received at the formal hearing includes an abundance of persuasive evidence of the Respondent's guilt, none of which is cast into doubt by the proposed new evidence. Especially significant in this regard is paragraph 15 of the Findings of Fact in the Recommended Order, which includes the following:
On August 30, 1989, the Respondent admitted to Carol Trick that he had been having a sexual affair with C. P. for the previous eight months. During the course of his conversation with Carol Trick, the Respondent described some details of the sexual affair that are corroborated by other evidence. A few days later, Carol Trick told the Director of the Nova Clinic that the Respondent had admitted to her that he was having a sexual affair with C. P.
The findings quoted immediately above are supported by clear and convincing evidence in the record of the formal hearing and that evidence is not cast in doubt by the proposed new evidence. Further, nothing in the proposed new evidence suggests that C. P. has recanted from, or would recant from, her testimony regarding her sexual activities with the Respondent. And nothing in the proposed new evidence would diminish from the persuasive effect of the evidence that corroborates many of the details contained in C. P.'s testimony at the formal hearing.
With regard to the fifth, and last, of the criteria quoted above, the motion in this case is insufficient because the new evidence sought to be offered is, at best "merely cumulative or impeaching." It is cumulative because the evidence submitted at the formal hearing included expert opinion evidence to the effect that patients suffering from the conditions from which C. P. suffers are often unreliable witnesses. It is also cumulative because the evidence submitted at the formal hearing included evidence that C. P. might be motivated to present false testimony. Finally, it is cumulative because the evidence submitted at the formal hearing included expert witness testimony to the effect that in the future it would not be unlikely for C. P. to engage in conduct of essentially the same type as that described in the proposed new evidence. That evidence was duly considered in the course of evaluating the reliability of C. P.'s testimony prior to making the Findings of Fact in the Recommended Order. Consideration of the proposed new evidence would not change that evaluation.
The proposed new evidence is "merely impeaching" because, at best, it might have a tendency to cast doubt on C. P.'s character as a reliable witness. In this regard it is significant to note that the proposed new evidence does not purport to contradict a single fact testified to by any witness at the formal hearing. The proposed new evidence is addressed solely to the issue of C. P.'s character as a truthful and accurate witness. That issue was thoroughly explored at the formal hearing and the proposed new evidence, if received and considered along with the evidence received at the formal hearing, would not provide a basis for changing any finding of fact in the Recommended Order.
For all of the foregoing reasons, it is ORDERED: (1) that the Respondent's Motion To Hearing Officer To Reopen Case For The Purpose Of Introducing Important New Evidence is DENIED; (2) that the issues raised in the Respondent's Motion To Hearing Officer To Reopen Case For The Purpose Of Introducing Important New Evidence do not provide any basis upon which any changes should be made to the Recommended Order; and (3) that this case is hereby returned to the Board of Medicine for the entry of a Final Order based on the Recommended Order issued on June 29, 1994, and the evidence received at the formal hearing previously held in this case.
DONE AND ENTERED this 5th day of May, 1995, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
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 5th day of May, 1995.
ENDNOTES
1/ At the formal hearing in this case, Dr. Klass was a candid and persuasive witness. It is logical to assume that if called again, his testimony would be of similar quality. And in any event, any doubts about the quality of the proposed new evidence should be resolved in Respondent's favor for purposes of ruling on the motion.
2/ The Hearing Officer has not been provided with sufficient information to determine whether the psychotherapist-patient privilege would be violated by the proposed new evidence. For purposes of ruling on the motion, any doubts in that regard have been resolved in favor of the Respondent's position.
3/ The Respondent has attempted to distinguish the facts in this case from cases such as Bray v. Electronic Door-Lift, Inc., supra, and Dade National Bank of Miami v. Kay, supra, and has also directed attention to cases such as Cluett
v. Dept. of Professional Regulation, Florida Real Estate Commission, 530 So.2d
351 (Fla. 1st DCA 1988). Bray and Dade National are applicable cases and are dispositive of the issues presented here. Cases such as Cluett turn on facts not present here. (Similar to Cluett, see Roberto v. Allstate Insurance Co.,
457 So.2d 1148 (Fla. 3d DCA 1984), which also turned on facts not present here.)
COPIES FURNISHED:
Monica L. Felder, Esquire Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
E. Ross Zimmerman, Esquire Weinstein, Zimmerman & Nussbaum Third Floor
7880 North University Drive Tamarac, Florida 33321
Linda Goodgame, Esquire General Counsel
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Marm Harris Executive Director Board of Medicine
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,
Petitioner,
AHCA CASE NO: 90-05727
DOAH CASE NO: 91-6205 JAN A. SALZBERG, M.D., LICENSE NO: ME 0041587
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b) 10, Florida Statutes, on June 10, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A), Respondent's Exceptions to the Recommendation of the Hearing Officer and Supplemental Exceptions to the Recommendation of the Hearing Officer (Attached as App. B.), Petitioner's Response to the Respondent's Exceptions to the Recommended Order and to Respondent's Supplemental Exceptions to the Recommendation of the Hearing Officer (Attached as App. C), The Hearing Officer's Order on Remand (attached as App. D), Respondent's Exceptions to The Order on Remand (Attached as App. E) and Petitioner's Response to Respondent's Exceptions to the Order on Remand (Attached as App. F) in the case of Agency for Health Care Administration, Board of Medicine v. Jan A. Salzberg, M.D. At the hearing before the Board, Petitioner was represented by Monica Felder, Medical Attorney.
Respondent was present and represented by E. Ross Zimmerman, Esquire. Upon consideration of the Hearing Officer's Recommended Order, the Hearing Officer's Order on Remand, the Exceptions and Responses of the parties thereto and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:
RULINGS ON EXCEPTIONS TO THE HEARING OFFICER'S ORDER ON REMAND
The Respondent's Exception that the Hearing Officer erred in the decision not to reopen this case is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. F), the Hearing Officer accepted as true the proffered evidence and applied the established case law and found that the proffered evidence did not meet the legal requirements because the new evidence proffered by the Respondent would not change the result and was cumulative and impeaching at best.
The Respondent's Exception that the Hearing Officer erred by not revisiting the appropriateness of the recommended penalty, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. F), the Hearing Officer clearly stated in the Order on Remand that none of the evidence proffered by the Respondent would change his recommendation in this case. His recommendation in this case included a penalty of revocation.
The Board accepts and adopts the Hearing Officer's Order that Respondent's Motion to Reopen the case is denied, that the issues raised in the Respondent's Motion to The Hearing Officer to reopen the case do not provide any basis upon which changes should be made to the Recommended Order and that the case is returned to the Board for final action.
RULINGS ON RESPONDENT'S EXCEPTIONS TO THE FINDINGS OF FACT
Respondent's Exception to paragraph 5 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the patient's hallucinations at the Nova Clinic, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence.
Respondent's Exception to paragraph 6 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient in her recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 7 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the witness Ms. Bertera in her recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraphs 9 and 10 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient and the Respondent, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 11 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient and her father, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraphs 12 and 13 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding independent evidence to support the finding of the Respondent's public affection to the patient, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence of several witnesses and receipts for gifts purchased by Respondent for the patient.
Respondent's Exception to paragraphs 14 and 16 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient recollection of events based upon a psychiatric disorder, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 15 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the witness Carol Trick's recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 18 of the Findings of Fact of the Recommended Order of the Hearing Officer that the relationship between the Respondent and the patient was below an acceptable standard of care, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence.
Respondent's last exception to the Findings of Fact of the Recommended Order of the Hearing Officer that the case should be reopened for what the Respondent describes as new evidence, is rejected for reasons stated in the Hearings Officer's Order on
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings herein.
EXCEPTIONS TO THE CONCLUSIONS OF LAW
At the time the Board considered the Conclusions of Law of the Recommended Order of the Hearing Officer, the Respondent and the Petitioner specifically agreed to accept a burden of proof of preponderance of the evidence, not clear and convincing evidence, as the applicable standard of proof in this case with the clear understanding that the Board would be limited in imposing any penalty which included revocation or suspension.
The Board accepted the agreement of the parties and therefore rejected paragraph 20 of the Conclusions of Law of the Recommended Order and substituted therefore: "Based upon the agreement of the parties being accepted by the Board, in this license discipline proceeding the Petitioner bears the burden of proving its charges by a preponderance of the evidence."
The following sentence in paragraphs 24, 25 and 26 of the Conclusions of Law of the Recommended Order is rejected, " This violation has been proved by clear and convincing evidence." The following sentence is hereby substituted therefore: " This violation has been proved by a preponderance of the evidence."
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.
DISPOSITION
Based upon the Recommended Findings of Fact and Conclusions of Law, as amended, the Respondent has violated Sections 458.331(1)(j) (t) and (x), Florida Statutes.
In light of the foregoing Findings of Fact and Conclusions of Law, as amended, the Board hereby determines that pursuant to Section 458.331(1)(3), Florida Statutes, the penalty recommended by the Hearing Officer is inappropriate.
WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(j) (t) and (x), Florida Statutes as alleged in the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty.
The Respondent shall pay an administrative fine in the amount of five thousand ($5,000) dollars to be paid in full before probation is lifted.
During the next two years, Respondent shall be restricted from practicing in a prison setting with only male inmates. He shall not treat female patients unless and until he appears before the Board and demonstrates he can practice with skill and safety, at which time the Board may modify the terms of probation, if necessary.
Upon the filing of the Final Order in this cause, the Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of five (5) years the terms and conditions of which are as follows:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule 59R, Florida Administrative Code.
Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, annually, and at such other times as requested by the Board's Probationer's Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.
In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding supervision, whether direct or indirect by another physician, included in paragraphs 6 through 9 below (where applicable).
The provisions regarding preparation of investigative reports detailing compliance with this Stipulation.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:
Submit quarterly reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer.
Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Review 15 percent percent of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's supervisory/monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed supervising/ monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Department of Professional Regulation, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399- 0750. In order to provide time for Respondent's proposed supervisory/monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's supervising/monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervising/monitoring physician is temporarily approved. In the event that the proposed monitoring/supervising physician is not approved, then Respondent shall cease practicing immediately. Should Respondent's monitoring/supervising physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring supervising physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising physician during those periods of time which Respondent's monitoring/supervising physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervising physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring/supervising physician. Respondent shall not practice unless he is under the supervision of either the approved supervising/monitoring physician or the approved alternate.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location.
Describe current practice (type and composition).
Brief statement of compliance with probationary terms.
Describe relationship with monitoring/supervising physician.
Advise Board of any problems.
Respondent shall participate and comply with the Physicians' Recovery Network. Respondent shall enter into an after care contract with the Physicians' Recovery Network and shall cause the medical director of the Network to send the Board a copy of that after care contract. Respondent shall comply with all of the conditions of his after care contract with the Florida Medical Foundation's Physicians' Recovery Network. Respondent shall execute a release for the Physicians' Recovery Network to authorize the Network to release information and medical records (including psychiatric records and records relating to treatment for drug dependence and alcoholism) to the Board as needed to monitor the progress of Respondent in the Network's program.
Respondent shall cause the director of the Physicians' Recovery Network to report to the Board any problems that may occur with Respondent and any violations of Chapter 458, Florida Statutes, that occur. Respondent shall cause the director to make such a report within 30 days of the occurrence of any problems, or violations of Chapter 458, Florida Statutes.
Respondent understands that during this period of probation, semiannual investigative reports will be compiled with the Department concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
PROVISIONS GOVERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN
DEFINITIONS:
INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.
DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.
Provisions governing all supervised or monitored physicians:
The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.
The Respondent shall not practice without a monitoring or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the Chairman of the Board's Probationer's Committee prior to that first meeting of the Board's Probationer's Committee, then Respondent may not practice medicine until he has obtained such approval. Temporary approval is only available if provided for in the Final Order.
After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's Committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore, the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer's Committee. Failure to appear by the monitor or supervisor as directed shall constitute a violation of the Board's Final Order.
The supervisor or monitor must be a licensee under Chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE and ORDERED this 10th DAY OF June, 1995.
BOARD OF MEDICINE
GARY E. WINCHESTER, M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Jan A. Salzberg, M.D.,
91 U.S. West 22nd CL (b), Fort Lauderdale, Florida 33324, E. Ross Zimmerman, Esquire, Weinstein, Zimmerman and Nussbaum, Third Floor, 7880 North University Drive, Tamarac, Florida 33321 and Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 17th day of July, 1995.
Marm Harris, Ed.D. Executive Director
================================================================= CORRECTED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,
Petitioner,
AHCA CASE NO: 90-05727
DOAH CASE NO: 91-6205
LICENSE NO: ME 0041587
JAN A. SALZBERG, M.D.,
Respondent
/
CORRECTED FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on June 10, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A), Respondent's Exceptions to the Recommendation of the Hearing Officer and Supplemental Exceptions to the Recommendation of the Hearing Officer (Attached as App. B.), Petitioner's Response to the Respondent's Exceptions to the Recommended Order and to Respondent's Supplemental Exceptions to the Recommendation of the Hearing Officer (Attached as App. C), The Hearing Officer's Order on Remand (attached as App. D), Respondent's Exceptions to The Order on Remand (Attached as App. E) and Petitioner's Response to Respondent's Exceptions to the Order on Remand (Attached as App. F) in the case of Agency for Health Care Administration, Board of Medicine v. Jan A. Salzberg, M.D. At the hearing before the Board, Petitioner was represented by Monica Felder, Medical Attorney. Respondent was present and represented by E. Ross Zimmerman, Esquire. Upon consideration of the Hearing Officer's Recommended Order, the Hearing officer's Order on Remand, the Exceptions and Responses of the parties thereto and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:.
RULINGS ON EXCEPTIONS TO THE HEARING OFFICER'S ORDER ON REMAND
The Respondent's Exception that the Hearing Officer erred in the decision not to reopen this case is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. F), the Hearing Officer accepted as true the proffered evidence and applied the established case law and found that the proffered evidence did not meet the legal requirements because the new evidence proffered by the Respondent would not change the result and was cumulative and impeaching at best.
The Respondent's Exception that the Hearing Officer erred by not revisiting the appropriateness of the recommended penalty, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. F), the Hearing Officer clearly stated in the Order on Remand that none of the evidence proffered by the Respondent would change his recommendation in this case. His recommendation in this case included a penalty of revocation.
The Board accepts and adopts the Hearing Officer's Order that Respondent's Motion to Reopen the case is denied, that the issues raised in the Respondent's Motion to The Hearing Officer to reopen the case do not provide any basis upon which changes should be made to the Recommended Order and that the case is returned to the Board for final action.
RULINGS ON RESPONDENT'S EXCEPTIONS TO THE FINDINGS OF FACT
Respondent's Exception to paragraph 5 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the patient's hallucinations at the Nova Clinic, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence.
Respondent's Exception to paragraph 6 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient in her recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this
finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 7 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the witness Ms. Bertera in her recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraphs 9 and 10 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient and the Respondent, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 11 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient and her father, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraphs 12 and 13 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding independent evidence to support the finding of the Respondent's public affection to the patient, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence of several witnesses and receipts for gifts purchased by Respondent for the patient.
Respondent's Exception, to paragraphs 14 and 16 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the patient recollection of events based upon a psychiatric disorder, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 15 of the Findings of Fact of the Recommended Order of the Hearing Officer regarding the credibility of the witness Carol Trick's recollection of events, is rejected. For reasons stated in the Petitioner's Response to the Respondent's Exceptions (Attached as App. C), this finding of fact was based upon the Hearing Officer determining credibility of witnesses and reweighing evidence or the credibility of witnesses is not a matter subject to review by the Board.
Respondent's Exception to paragraph 18 of the Findings of Fact of the Recommended Order of the Hearing Officer that the relationship between the Respondent and the patient was below an acceptable standard of care, is rejected. For reasons stated in the Petitioner's Response to the Respondent's
Exceptions (Attached as App. C), this finding of fact was based upon competent, substantial evidence.
Respondent's last exception to the Findings of Fact of the Recommended Order of the Hearing Officer that the case should be reopened for what the Respondent describes as new evidence, is rejected for reasons stated in the Hearings Officer's Order on Remand.
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings herein.
EXCEPTIONS TO THE CONCLUSIONS OF LAW
l. At the time the Board considered the Conclusions of Law of the Recommended Order of the Hearing Officer, the Respondent and the Petitioner specifically agreed to accept a burden of proof of preponderance of the evidence, not clear and convincing evidence, as the applicable standard of proof in this case with the clear understanding that the Board would be limited in imposing any penalty which included revocation or suspension.
The Board accepted the agreement of the parties and therefore rejected paragraph 20 of the Conclusions of Law of the Recommended Order and substituted therefore: "Based upon the agreement of the parties being accepted by the Board, in this license discipline proceeding the Petitioner bears the burden of proving its charges by a preponderance of the evidence."
The following sentence in paragraphs 24, 25 and 26 of the Conclusions of Law of the Recommended Order is rejected, "This violation has been proved by clear and convincing evidence." The following sentence is hereby substituted therefore: "This violation has been proved by a preponderance of the evidence."
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.
DISPOSITION
Based upon the Recommended Findings of Fact and Conclusions of Law, as amended, the Respondent has violated Sections 458.331(1)(j), (t) and (x), Florida Statutes.
In light of the foregoing Findings of Fact and Conclusions of Law, as amended, the Board hereby determines that pursuant to Section 458.331(1)(3), Florida Statutes, the penalty recommended by the Hearing Officer is inappropriate.
WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(j), (t) and (x), Florida Statutes as alleged in the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty.
The Respondent shall pay an administrative fine in the amount of five thousand ($5,000) dollars to be paid in full before probation is lifted.
During the next two years, Respondent shall be restricted to practicing in a prison setting with only male inmates. He shall not treat female patients unless and until he appears before the Board and demonstrates he can practice with skill and safety, at which time the Board may modify the terms of probation, if necessary.
Upon the filing of the Final Order in this cause, the Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of five (5) years the terms and conditions of which are as follows:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule 59R, Florida Administrative Code.
Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, annually, and at such other times as requested by the Board's Probationer's Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.
In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding supervision, whether direct or indirect by another physician, included in paragraphs 6 through 9 below (where applicable).
The provisions regarding preparation of investigative reports detailing compliance with this Stipulation.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:
Submit quarterly reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer.
Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Review 15 percent percent of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's
supervisory/monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed supervising/ monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Department of Professional Regulation, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399- 0750. In order to provide time for Respondent's proposed supervisory/monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's supervising/monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervising/monitoring physician is temporarily approved. In the event that the proposed monitoring/supervising physician is not approved, then Respondent shall cease practicing immediately.
Should Respondent's monitoring/supervising physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring/supervising physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising physician during those periods of time which Respondent's monitoring/supervising physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervising physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring/supervising physician. Respondent shall not practice unless he is under the supervision of either the approved supervising/monitoring physician or the approved alternate.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location.
Describe current practice (type and composition).
Brief statement of compliance with probationary terms.
Describe relationship with monitoring/supervising physician.
Advise Board of any problems.
Respondent shall participate and comply with the Physicians' Recovery Network. Respondent shall enter into an after care contract with the Physicians' Recovery Network and shall cause the medical director of the Network
to send the Board a copy of that after care contract. Respondent shall comply with all of the conditions of his after care contract with the Florida Medical Foundation's Physicians' Recovery Network. Respondent shall execute a release for the Physicians' Recovery Network to authorize the Network to release information and medical records (including psychiatric records and records relating to treatment for drug dependence and alcoholism) to the Board as needed to monitor the progress ? Respondent in the Network's program.
Respondent shall cause the director of the Physicians' Recovery Network to report to the Board any problems that may occur with Respondent and any violations of Chapter 458, Florida Statutes, that occur. Respondent shall cause the director to make such a report within 30 days of the occurrence of any problems, or violations of Chapter 458, Florida Statutes.
Respondent understands that during this period of probation, semi- annual investigative reports will be compiled with the Department concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
PROVISIONS GOVERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN
DEFINITIONS:
INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.
DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.
Provisions governing all supervised or monitored physicians:
A. The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.
The Respondent shall not practice without a monitoring or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at
the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the Chairman of the Board's Probationer's Committee prior to that first meeting of the Board's Probationer's Committee, then Respondent may not practice medicine until he has obtained such approval.
Temporary approval is only available if provided for in the Final Order.
After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's Committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore, the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer's Committee. Failure to appear by the monitor or supervisor as directed shall constitute a violation of the Board's Final Order.
The supervisor or monitor must be a licensee under Chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
This Corrected Final Order takes effect upon the filing with the Clerk of the Agency Nunc Pro Tunc.
DONE and ORDERED this 10th DAY OF June, 1995.
BOARD OF MEDICINE
GARY E. WINCHESTER, M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Jan A. Salzberg, M.D.,
91 U.S. West 22nd CL (b), Fort Lauderdale, Florida 33324, E. Ross Zimmerman, Esquire, Weinstein, Zimmerman and Nussbaum, Third Floor, 7880 North University Drive, Tamarac, Florida 33321 and Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 2399-0792 on this day of , 1995.*
*(document on file with DOAH is undated)
Marm Harris, Ed.D. Executive Director
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Jan Salzberg, M.D., 762 Bayshore Drive, Tarpon Springs, Florida 34689, E. Ross Zimmerman, Esquire, Third Floor, 7880 North University Drive, Tamarac, Florida 33321, and by interoffice delivery to Larry G. McPherson, Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, at or before 5:00 pm., this 16th day of August, 1995.
Marm Harris
| Issue Date | Proceedings |
|---|---|
| Aug. 17, 1995 | Corrected Final Order filed. |
| Jul. 18, 1995 | Final Order filed. |
| May 05, 1995 | Order Closing File sent out. CASE CLOSED, Order on Remand. |
| Mar. 02, 1995 | Letter to MMP from E. Ross Zimmerman (RE: confirmation of hearing date and time) filed. |
| Feb. 23, 1995 | Notice of Motion Hearing (set for 3/13/95; 1:00pm) sent out. |
| Nov. 07, 1994 | Respondent's Argument in Rebuttal to Petitioner's Response to Motion to Remand filed. |
| Oct. 27, 1994 | Letter to MMP from R. Zimmerman (RE: American Psychiatric Association's ethical opinion); CC: letter to R. Zimmerman from W. Myers filed. |
| Oct. 17, 1994 | Letter to M. Felder from MMP (& enclosed letter from R. Zimmerman dated 10/10/94 w/2 encl.) sent out. |
| Oct. 14, 1994 | Letter to MMP from R. Zimmerman; CC: Letter to E. Zimmerman from D. Elliot; CC: Letter to American Psychiatric Association from R. Zimmerman filed. |
| Oct. 13, 1994 | Petitioner's Response to Respondent's Motion to Remand filed. |
| Oct. 13, 1994 | Petitioner's Response to Respondent's Motion to Remand filed. |
| Oct. 03, 1994 | (Respondent) Motion to Hearing Officer to Reopen case for the Purpose of Introducing Important New Evidence filed. |
| Sep. 01, 1994 | Order sent out. (re: reopening record) |
| Aug. 24, 1994 | (AHCA) Order of Remand filed. |
| Jun. 29, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held Feb. 8-11, 1993. |
| May 26, 1993 | Final Argument; Proposed Recommended Order filed. (From E. Ross Zimmerman) |
| May 25, 1993 | Petitioner's Proposed Recommended Order filed. |
| May 25, 1993 | (Respondent) Final Argument filed. |
| May 25, 1993 | (Respondent) Recommended Order (unsigned) filed. |
| May 18, 1993 | Order Extending Time sent out. (time within which the parties may file their proposed recommended orders is extended until May 25, 1993) |
| May 17, 1993 | Respondent's Motion for Extension of Time to File Written Summation and Proposed Recommended Order filed. |
| May 17, 1993 | Respondent's Motion for Extension of Time to File Written Summation and Proposed Recommended Order filed. |
| Apr. 09, 1993 | Order Extending Time sent out. (motion granted; time within which parties may file their proposed recommended orders is extended until 5-17-93) |
| Mar. 29, 1993 | Respondent's Motion for Extension of Time to File Written Summation and Proposed Recommended Order filed. |
| Mar. 23, 1993 | Transcript (Vols 1-4) filed. |
| Feb. 12, 1993 | Video Deposition of George William Barnard, Sr. w/Witness Certification & Exhibits + Video Tape filed. |
| Feb. 11, 1993 | CASE STATUS: Hearing Held. |
| Feb. 08, 1993 | (Respondent) Motion for Continuance/Motion to Strike Barbara Pepe From Witness List; Reciprocal Discovery filed. |
| Jan. 29, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 29, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Jan. 11, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 05, 1992 | (Respondent) Notice of Filing; Deposition of Joel Klass filed. |
| Nov. 03, 1992 | Notice of Hearing sent out. (hearing set for February 8, 9 and 10, 1993; 10:30am on February 8 and 8:30am on February 9 and 10; Fort Lauderdale) |
| Nov. 03, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 16, 1992 | (Respondent) Re-Notice of Taking Deposition filed. |
| Oct. 13, 1992 | (Respondent) Supplemental Witness List filed. |
| Oct. 13, 1992 | (Respondent) Supplemental Witness List filed. |
| Sep. 28, 1992 | Order Granting Continuance sent out. (hearing continued sine die; tele-conference set for 10/26/92; 1:00pm) |
| Sep. 28, 1992 | (Respondent) Notice of Filing w/Certificate of Non-Attendance filed. |
| Sep. 21, 1992 | (Respondent) Motion for Continuance; Re-Notice of Taking Deposition filed. |
| Aug. 24, 1992 | (Petitioner) Amended Notice of Taking Deposition filed. |
| Aug. 24, 1992 | (Petitioner) Amended Notice of Taking Deposition filed. |
| Aug. 12, 1992 | (Petitioner) Notice of Taking Deposition filed. |
| Aug. 12, 1992 | (Petitioner) Notice of Serving Answers to Respondent's Trial Interrogatories to Petitioner filed. |
| Aug. 06, 1992 | Letter to S A Papy from MMP sent out. |
| Aug. 06, 1992 | Letter to Parties of Record from MMP sent out. (Re: Citation) |
| Aug. 04, 1992 | (Respondent) Witness List filed. |
| Aug. 04, 1992 | Return of Service filed. |
| Aug. 04, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for October 13 and 14, 1992; will begin at 10:30am on the first day and at 9:00am on the second day; Fort Lauderdale) |
| Aug. 03, 1992 | (Respondent) Notice of Filing filed. |
| Aug. 03, 1992 | (Respondent) Notice of Hearing w/Exhibit-A filed. |
| Jul. 31, 1992 | Order sent out. (motion for protective order and to quash granted) |
| Jul. 30, 1992 | (Respondent) Notice of Hearing (telephonic) filed. |
| Jul. 30, 1992 | Subpoena Ad Testificandum (1); Notice of Service filed. (from R. Zimmerman) |
| Jul. 29, 1992 | Order sent out. (petitioner's motion denied) |
| Jul. 29, 1992 | (Respondent) Motion for Protective Order and to Quash the Deposition and Trial Subpoenas Issued filed. |
| Jul. 27, 1992 | (DPR) Motion for Protective Order filed. |
| Jul. 24, 1992 | Notice of Taking Deposition filed. (From E. Ross Zimmerman) |
| Jul. 22, 1992 | Notice of Serving Answers to Respondent's Trial Interrogatories to Petitioner filed. |
| Jul. 20, 1992 | Notice of Taking Telephone-Video Deposition filed. |
| Jul. 15, 1992 | (Petitioner) Notice of Taking Telephone Deposition; Notice of Taking Deposition filed. |
| Jul. 10, 1992 | Notice of Service of Interrogatories w/Interrogatories filed. |
| Jul. 06, 1992 | (Respondent) Request for Production filed. |
| Jun. 22, 1992 | (Respondent) Notice of Service of Expert Interrogatories filed. |
| May 04, 1992 | Notice Of Hearing Location sent out. (Rm 204-B Robert Hayes Gore Bldg. 201 West Broward Blvd, Ft. Lauderdale) |
| Apr. 27, 1992 | Order Rescheduling Hearing sent out. (hearing rescheduled for August5 and 6, 1992; 9:00am; Fort Lauderdale) |
| Apr. 27, 1992 | Letter to M.B. Radkins from M.M. Parrish (RE: Copies of Orders) filed. |
| Apr. 15, 1992 | (Respondent) Motion for Continuance filed. |
| Apr. 10, 1992 | Order sent out. (George V. Lanza, is granted leave to withdraw as counsel for the respondent, and E. Ross Zimmerman, shall be substituted as counsel for the respondent) |
| Apr. 09, 1992 | (joint) Stipulation and Order For Withdrawal and Substitution of Counsel filed. |
| Mar. 26, 1992 | Order Denying Motion To Withdraw sent out. (motion to withdraw filed by counsel for the respondent is denied) |
| Mar. 23, 1992 | (Respondent) Motion to Withdraw filed. |
| Feb. 21, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for May 14-15, 1992; 9:00am; Ft Lauderdale). |
| Feb. 18, 1992 | Respondent's Motion for Continuance filed. |
| Feb. 05, 1992 | Petitioner's Response to Respondent's Demand for Production-"Public Records Law" filed. |
| Jan. 21, 1992 | (Respondent) Demand for Production - "Public Records Law" filed. |
| Dec. 13, 1991 | (DPR) Notice of Substitution of Counsel filed. |
| Nov. 22, 1991 | (Petitioner) Notice of Appearance As Substitute Counsel filed. |
| Nov. 18, 1991 | (Respondent) Interrogatories filed. |
| Nov. 07, 1991 | Order sent out. (RE: Rulings on motions). |
| Nov. 04, 1991 | (Petitioner) Response to Motion to Produce filed. |
| Oct. 25, 1991 | Petitioner's Response to Motion to Strike and Petitioner's Motion to Amend filed. |
| Oct. 23, 1991 | (Petitioner) Response to Initial Order filed. |
| Oct. 15, 1991 | (Respondent) Motion tot Strike; Motion to Produce filed. |
| Oct. 04, 1991 | Initial Order issued. |
| Sep. 26, 1991 | Agency referral letter; Administrative Complaint; Notice of Appearance For Respondent; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 17, 1995 | Agency Final Order | |
| Aug. 22, 1994 | Remanded from the Agency | |
| Jun. 29, 1994 | Recommended Order | Psychiatrist violated 458.331(1)(j),(t)&(x), F.S. by having sexual affair with patient for several months. Recommended Order penalty is revocation and $15,000 fine. |
BOARD OF MEDICAL EXAMINERS vs. JOSE RODRIGUEZ LOMBILLO, 91-006205 (1991)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs DAVID SIMON, D.O., 91-006205 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD MALAVE, M.D., 91-006205 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ZAFAR S. SHAH, M.D., 91-006205 (1991)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ZAFAR S. SHAH, M.D., 91-006205 (1991)
