STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0025

)

RALPH ALBERT ROPHIE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above-styled case on June 5, 1992, at Clearwater, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

Department of Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: Bruce Marger, Esquire

Audrey Rauchway, Esquire

P.O. Box 3452

St. Petersburg, Florida 33731-3452 STATEMENT OF THE ISSUES

Whether Respondent exercised influence within the physician-patient relationship for purposes of engaging the patient in sexual activity thereby violating provisions of Chapter 458, Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed December 2, 1991,

the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Ralph Albert Rophie, Respondent, as a medical doctor. As grounds therefore it is alleged that on or about January 24, 1991 and February 4, 1991 Respondent engaged in sexual intercourse with Patient #1 in Respondent's home and thereby committed sexual misconduct in the practice of medicine in violation of Section

458.329 and 458.331(1)(j) and (x), Florida Statutes. Respondent requested an administrative hearing to challenge these charges, and these proceedings followed.

At the hearing Petitioner called 3 witnesses.

Respondent called 5 witnesses, including himself, and 13 exhibits were offered into evidence. All were admitted except Exhibit 12 to which objection was sustained.

Proposed findings have been submitted by the parties.

Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof. Having fully considered all evidence presented I submit the following.

FINDINGS OF FACT

1. At all time relevant hereto Ralph A. Rophie,

   Respondent, was licensed as a medical doctor by the Florida Board of Medicine, having been issued license #ME0056805, pursuant to Chapter 20.30, Florida Statutes.

   
   

2. The Department of Professional Regulation is the state agency charged with the duty of investigating complaints and preferring charges, if indicated, against licensees coming under the aegis of the Department of Professional Regulation.

   
   

3. From on or about March 30, 1990 until on or about

   May 28, 1991 Respondent rendered medical services to Patient #1 (hereafter referred to as Patient) and had a patient-physician relationship with her.

   
   

4. On or about January 24, 1991 and February 4, 1991 Respondent engaged in sexual intercourse with Patient at Respondent' s home.

   
   

5. Prior to becoming a patient of Respondent,

   Patient was a patient of Dr. Greengold another family practitioner who shared offices with Respondent. During Dr. Greengold's absence Patient saw Respondent, who was filling in for Dr. Greengold, and thereafter she requested her records be transferred to Respondent.

   
   

6. Patient found Respondent to be a caring physician

   with whom she was comfortable and pleased with his treatment as her physician. At the time she changed her records to Respondent Patient was pregnant with her second child and saw Respondent for non-pregnancy related illnesses such as flu, tonsillitis, back problems and urinary tract infections.

   
   

7. During this time Patient was having marital

   problems which she mentioned to Respondent. On subsequent visits Respondent asked her about her marital problems and offered support to her.

   
   

8. Patient recommended her parents, her in-laws and several friends to become patients of Respondent. Both of her parents and in-laws became patients of Respondent and remained

   patients of Respondent after the complaint herein involved was filed. Patient's father died during this period but her mother remained a patient of Respondent until she was told Respondent had impregnated Patient and suggested Patient abort. Patient miscarried the fetus. The parents of Patient's husband remain patients of Respondent.

   
   

9. When Patient gave birth to her second child

   Respondent visited Patient (as a friend and not as her physician) while making his rounds at Morton Plant Hospital.

   
   

10. Following the birth of this child in November,

    1990 Patient saw Respondent numerous times and, although the baby was under the care of a pediatrician, in December, 1990 the baby appeared quite ill and she took the baby to Respondent who determined the baby was febrile. He contacted her pediatrician and had him meet Patient with the baby at the emergency room at the hospital.

    
    

11. In late December, 1990 Patient was suffering post partum abdominal pains and was seen by Respondent for this malady. Respondent conducted an abdominal examination by partially undressing Patient without a nurse present. Patient thought this procedure unusual but, having complete confidence in Respondent, gave it little further thought.

    
    

12. During an office visit in January, 1991

    Respondent kissed and caressed Patient. He also inquired into her marital problems in a manner sympathetic to Patient by expressing unhappiness with the lack of communication between her and her husband which appeared to be the primary problem. At the time Patient was contemplating divorce and discussed this with Respondent.

    
    

13. Patient is a very competitive person who is

    successful in selling organs to churches and other organizations and in playing the organ professionally. She works at a pace which puts her under considerable stress causing some emotional problems. This no doubt led to her reliance on Respondent for consolation and to her falling in love with him.

    
    

14. Although Respondent contends Patient descended on

    him unexpectedly on January 24, 1991, Patient's testimony that he had caressed and kissed her during an office visit on January 23, 1992 and telephoned her on January 24 to invite her to his home is deemed more credible. When she called him on her car phone after finishing choir practice January 24 he readily provided his home address. At this time Respondent was a bachelor and lived alone. Shortly after Patient arrived at his home Respondent led her into his bedroom where they engaged in sexual intercourse.

    
    

15. Patient next visited Respondent's office on January 30, 1991 for a follow-up visit for a urinary tract

    infection. During this visit Respondent expressed his affection for her.

16. Patient's next visit to Respondent's office was February 4, 1991. During this visit Respondent put his hand under Patient's shirt and kissed her. Thinking Respondent was attempting to engage her in sex in the office Patient said they should keep that out of the office. Respondent told her he wanted to see her again and that evening, February 4, 1991, Patient again came to Respondent's home and they engaged in sex.

    
    

17. Shortly after this incident, Respondent told Patient that they had no future together because of their religious differences. Yet during her office visits in

    subsequent months Respondent continued to evince an interest in having sex with Patient.

    
    

18. Patient wrote Respondent letters on November 8,

1990 (which accompanied a gift for his new office) and on March 4, 1991 (Exhibit 6), and April 5, 1991 (Exhibit 7) in which she expressed her love for him and her willingness to fight for his love. On October 7, 1991 (Exhibit 9) Patient again wrote a letter to Respondent expressing her disappointment that they had not been able to establish a solid relationship and of her hurt when, around March, 1991, while she was carrying his child he poked her belly with his pen and said "get rid of it." Patient subsequently had a miscarriage which she referred to in this letter.

1. Respondent admitted the sexual intercourse with Patient, but contended that she is the one who initiated the sex. He testified that, although he realized physicians should not engage in sexual intercourse with ongoing patients in the office he thought that such conduct outside the office was not necessarily wrong, depending on the circumstances.

   
   

2. Respondent has been practicing medicine for approximately three years, is board certified in family practice, is well liked by his patients, and is well respected by his colleagues as demonstrated by his election to several hospital committees and as an officer on the board in family practice.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Section 458.331(1), Florida Statutes, provides in pertinent part:

   
   

   1. 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.

      * * *

      (x) Violating any provision of this chapter...

      
      

5. Section 458.329, Florida Statutes, provides:

   
   

   The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to 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.

   
   

6. In determining the effect to be given the statutory presumption cited above, the Florida Evidence Code is applicable. Section 90.301(2), Florida Statutes provides:

   
   

   Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.

   
   

7. Since the statute does not make the presumption that a patient is incapable of giving informed consent conclusive, the presumption is rebuttal. Rebuttal presumptions are classified in Section 90.302 as either:

   
   

   1. A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption, or

   2. A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.

      
      

8. Section 90.303, provides:

   
   

   In a civil action or proceeding, unless otherwise provided by statute a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption

   affecting the burden of producing evidence.

   
   

9. Section 90.304, provides:

   
   

   In civil actions, all rebuttal presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.

   
   

10. The statutory presumption contained in s. 458.331(1)(j) involves a public policy further expressed in s. 458.329 above quoted and, therefore, is the type of presumption described in s. 90.304, viz., a statutory presumption affecting the burden of proof. As stated in the court in Department of Agriculture and Consumer Services v. Bonnano, 568 So.2d 24, 31 (Fla. 1990):

    
    

    When a presumption shifts the burden of proof, the presumption remains in effect even after evidence rebutting the presumption has been introduced and the jury must decide if the evidence is sufficient to overcome the presumption. (citation omitted.) Presumptions which shift the burden of proof in civil proceedings are primarily expressions of public policy.

    
    

11. In Bonnano the court cited with approved Caldwell v. Division of Retirement, 372 So.2d 438 (Fla. 1979), which involved a statutory presumption that the disability occasioned to a firefighter, who suffered a heartattack while on duty, was incurred in the line of duty. In Caldwell the court stated at 372 So.2d 441:

    
    

    The statutory presumption is the expression of a strong public policy which does not vanish when the other party submits evidence. Where the evidence is conflicting, the quantum of proof is balanced and the presumption should prevail. This does not foreclose the employer from overcoming the presumption. However, if there is evidence supporting the presumption the employer can overcome the presumption only by clear and convincing evidence.

    
    

12. From the evidence presented it is clear that Respondent developed and encouraged a relationship with Patient both personal and intimate. By encouraging Patient to discuss her marital problems and supporting her position, further dependence upon the physician was fostered. Hugging and caressing Patient in the office setting encouraged Patient to fall in love with the physician and seek a permanent relationship.

    
    

13. Following the January 24 sexual episode when the patient next returned for an office visit Respondent continued sexual advances in the office. Although Respondent denies any intimate contact with Patient in the office the testimony of Patient is deemed more credible in this regard.

14. In these proceedings, Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

    
    

15. Petitioner's expert witness, a forensic psychiatrist, opined that, other than by being raped, a physician could never have sexual relations with a patient without committing sexual misconduct as defined in s. 458.329. While I do not subscribe to this position insofar as it creates an irrebuttable presumption of sexual misconduct, this testimony is further evidence of the strong public policy behind such proscription.

    
    

16. Respondent contends that Patient was the moving force and instigator of the sexual activities in which he participated. While the fact that Respondent is a professional with an apparent bright future which would make him a very eligible batchelor and matrimonially attractive, this fact does not rebut the evidence that Respondent encouraged Patient to "fall" for him. The evidence submitted by Respondent is insufficient to overcome the presumption of sexual misconduct presented through the testimony of Patient. From the foregoing, it is concluded that Respondent violated the provisions of Section 458.331(1)(j) and (x) as alleged.

    
    

17. Section 458.331(2) provides that if any person is found guilty of any of the grounds set forth in subsection (1) the board may revoke or suspend the license, restrict practice, issue a reprimand, and impose an administrative fine not to exceed

    $5,000 for each count or separate offense.

    
    

18. Disciplinary guidelines in Rule 21M-20.001, Florida Administrative Code, provide for violation of s. 458.331(1)(j) a recommended penalty of from one (1) year suspension to revocation and an administrative fine from $250 to $5,000.

    
    

19. Although Respondent was charged with violations of subsections of 458.331(1)(j) and (x) both of these violations were the result of the one act, viz. sexual intercourse with a patient. Accordingly, Respondent should receive punishment for only one violation and not two.

RECOMMENDATION

Based upon his age and single status at the time of the misconduct, his limited practice time, his reputation with his patients and with his peers, it is

RECOMMENDED that the Board of Medicine enter a Final

Order finding Ralph Albert Rophie guilty of exercising influence within a physician/patient relationship for the purposes of engaging the patient in sexual activity; that his license to practice medicine in this state be suspended for period of two years; and that he be given an administrative fine of $5,000.

It is further RECOMMENDED that the suspension be stayed for a probationary period of three years under such terms and

conditions as the Board deems appropriate; and, at the expiration of the 3-year probationary period, unless the stay is sooner vacated, the suspension be set aside and Respondent restored to good standing with the Florida Board of Medicine.

DONE and ENTERED this 10th day of July, 1992, at Tallahassee, Florida.

K.N. AYERS 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 10th day of July, 1992.

APPENDIX

Proposed findings submitted by Petitioner are accepted. Those proposed findings not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither accepted nor included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

11. Rejected insofar as Dr. Sprehe's testimony was based upon inadmissible hearsay. First, Dr. Sprehe was

testifying as an expert and an expert's opinion may be based upon hearsay. Second, the "hearsay" upon which Dr. Sprehe relied was corroborated by admissible evidence.

16. Accepted as Respondent's testimony, but not as fact.

1. Second sentence rejected as not supported by credible evidence.

   
   

2. Third sentence rejected as a fact.

   
   

3. First sentence rejected.

1. Rejected. This testimony was considered in determining whether Respondent exercised influence within the physician-patient relationship to engage the patient in sexual activities.

2. Third sentence accepted only as testimony of the witness.

26. Rejected as irrelevant.

29. Accepted only as testimony of the witnesses. Rejected as irrelevant.

37. Accepted as testimony of witness but rejected as irrelevant.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399 0792

Bruce Marger, Esquire and Audrey Rauchway, Esquire Post Office Box 3452

St. Petersburg, Florida 33731 3452

Dorothy Faircloth, Executive Director Florida Board of Medicine

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399 0750

Jack McRay, Esquire General Counsel

Department of Professional Regulation

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.

Docket for Case No: 92-000025

Orders for Case No: 92-000025