STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN S. WISE, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 92-2052F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case at Tallahassee, Florida, on May 15, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Mark P. Lang, Esquire

Lang & Baker

Post Office Box 2127 Orlando, Florida 32802-2127

For Respondent: Mary B. Radkins, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in which the Petitioner, a prevailing party, seeks an award of attorney's fees and costs. The Respondent opposes the award on the grounds that "the actions of the agency were substantially justified or special circumstances exist which would make the award unjust."

PRELIMINARY STATEMENT

On February 10, 1992, the Department of Professional Regulation filed a Closing Order And Notice Of Dismissal in DOAH Case No. 91-6058, DPR Case No. 90- 02400. The effect of that order and notice was to dismiss administrative proceedings previously initiated by the Department of Professional Regulation in which the Petitioner was charged with violations of Chapter 458, Florida Statutes. Following the dismissal of the administrative proceedings against him, on March 20, 1992, the Petitioner timely filed a Motion For Award Of Attorney's Fees And Costs.

Prior to the hearing in this case the parties filed a written stipulation in which they resolved several legal issues and stipulated to numerous facts. At the formal hearing the Petitioner offered several exhibits, but did not call any witnesses. The Respondent offered several exhibits and also presented the testimony of two witnesses: Ms. Judith Lammert, Senior Complaint Analyst with the Department, and Mr. Larry McPherson, Chief Medical Attorney with the Department. At the conclusion of the hearing the parties were allowed until June 10, 1992, within which to file their proposed final orders.

On June 1, 1992, the transcript of the formal hearing was filed with the Hearing officer. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Final Order.

FINDINGS OF FACT

1. In their Joint Prehearing Stipulation, the parties stipulated to the following facts:

   
   

   1. On February 6, 1990, the Complainant wrote a letter to the Department complaining of Petitioner's alleged sexual misconduct "during the late 70s" during her office sessions with Petitioner.

   2. On February 14, 1990, the Department sent a form letter to Complainant requesting her to sign a release of medical records.

   3. On February 28, 1990, the Department opened the underlying case and forwarded the file to an investigator to try to obtain a medical release.

   4. On April 5, 1990, the Complainant was interviewed by a DPR investigator concerning her complaints of sexual misconduct by Petitioner while she was his patient.

   5. On April 5, 1990, the investigator obtained from the Complainant a signed patient consent form for the release of copies of her "general medical records with psychiatric consultations or secondary diagnoses" maintained by Petitioner between 1976 and 1982. No other release was ever signed by the Complainant.

   6. The Department issued a subpoena for Petitioner's records on or about April 26, 1990.

   7. Petitioner was notified of the complaint on April 30, 1990 through his attorney, Mark P. Lang, Esquire, who denied the allegations on behalf of his client.

   8. Copies of the Complainant's medical and psychiatric records including consultations and diagnoses, comprising 144 pages, were provided to the Department by Petitioner's attorney on July 5, 1990.

   9. On August 2, 1990, the field investigation was deemed complete and the investigative report was forwarded to Tallahassee.

   10. On June 19, 1991, the probable cause panel, consisting of James N. Burt, M.D., the Chairman, and Ms. Pamela A. Campbell, the lay consumer member, considered Respondent's case as reflected by the transcript of the meeting.

   11. The members of the probable cause panel voted to find probable cause and file the administrative complaint as drafted by the Department. This was memorialized the same day, stating that probable cause was found on violations of subsections 458.331(1)(x) and (j), Florida Statutes.

   12. The administrative complaint was filed on July 23, 1991.

   13. On November 13, 1991, Larry G. McPherson, Jr., Esquire, assumed the prosecution of this case. A Notice of Substitution of Counsel was entered on November 13, 1991, by attorney McPherson.

   14. Complainant's deposition was taken by Respondent on November 14, 1991. At the deposition, the Complainant again refused to sign any release for psychiatric records other than those produced by the Petitioner.

   15. Petitioner (then Respondent) filed an Amended Motion for Dismissal or Sanctions on or about December 27, 1991. Respondent (then Petitioner) filed a Response on January 3, 1992.

   16. The Department's "Closing Order" and "Notice of Dismissal" was filed on or about February 10, 1992.

   17. Petitioner is a prevailing small business party in this matter.

   18. Petitioner has incurred reasonable attorney's fees and costs in excess of

       $15,000.00 and no proof of attorney's fees will be required at the hearing.

       
       

       The following findings are based on proof at hearing:

       
       

2. The February 6, 1990, letter from the Complainant to the Department included the following language in the last paragraph:

   
   

   . . . I was a patient of Dr. Wise. I saw him during the late 1970's when I was a teenager. I was sexually abused during office sessions and it has taken years of therapy for me to be able to write this letter. I want to know what further steps can be taken to see that Dr. Wise loses his license to practice medicine. I am willing to testify.

3. The Department utilizes two medical records release forms: one form is an Authorization for Release of Patient Information, the other is a Release of General Medical Records with Psychiatric Consultations or Secondary Diagnoses. The first form covers all medical records at all times and all treating physicians. The second form is a general release used when psychiatric records are involved, and specifically notices the patient that signing it waives the psychiatrist-patient privilege with respect to a particular physician for a specific time period. Ms. Lammert does not recall which release form was sent to the Complainant with the Department's letter of February 14, 1990.

   
   

4. By letter dated February 24, 1990, the Complainant responded to the Department's request for release of medical records as follows:

   
   

   I will not sign a blanket authorization for release of my medical records. I am more than willing to see that you have access to records and information that have a direct bearing on the matter concerning Dr. Wise.

   I am interested in seeing justice served, but I refuse to subject myself to further abuse by a system that shows itself to be biased

   in favor of the physician and has blatant disregard for people who have been victimized. I await your reply.

   
   

5. On or about July 19, 1990, a Department field investigator filed a written note stating that a signed patient release had been received from the Complainant. However, the note specifically stated that the release "did not include psychiatric consultations." The investigator also specifically noted that "Complainant is currently undergoing psychiatric treatment."

   
   

6. The only interview of the Complainant by a Department investigator prior to the filing of the Administrative Complaint was conducted on April 5, 1990, in a psychiatric hospital to which the Complainant was voluntarily admitted. The interview on April 5, 1990, was "terminated prematurely" because of the Complainant's upset emotional state and difficulty in staying composed during the interview. During the course of the interview the Complainant described specific acts of sexual misconduct by Dr. Wise which she said took place during the time she was his patient. The investigator's report of the interview also included the following additional information:

   
   

   A part of her [Complainant's] therapy now is to divulge all that had occurred during her sessions with the subject. She stated further that being hospitalized was a measure she took in anticipation and preparation for this interview. She added she would like to see justice served in this matter and is willing to testify.

   * * *

   During a brief discussion with Dr. Fishman, he stated that [Complainant] was being hospitalized temporarily, and is expected to be released within a week . . . . He added should a hearing become necessary, she [Complainant] will be competent to testify.

7. The investigator's report of the April 5, 1990, interview concluded with the following "observations":

   
   

   [Complainant] is articulate and expressed much concern to cooperate. She is unable to recall specific dates however, she could recall specific events. Initially, she maintained composure, however, she became

   emotional when she recalled what the subject did to her.

   
   

   She became more emotional when questioned as to what he coerced her to do. The information she was able to provide was credible. She expressed great interest in pursing this investigation; even though, she was unable to remain composed, thus terminating the interview prematurely.

   
   

8. The investigative file provided to the Probable Cause Panel of the Board of Medicine included, among other things, the Petitioner's complete medical records of his treatment of the Complainant, the reports prepared by Department investigators, and all other materials collected by the investigators.

   
   

9. When Mr. McPherson entered his Notice of Appearance in this case on November 13, Petitioner's deposition of the Complainant had been scheduled for the next day. Mr. McPherson met with the Complainant and her husband the day before the deposition and told her she would probably be asked to sign a release concerning her current psychiatric records. It was Mr. McPherson's understanding that she did not know whether she would sign such a release.

   
   

10. During the Complainant's deposition she answered many questions concerning her hospitalization, physicians and diagnoses, but when Petitioner's counsel began to question her about recent medical and psychiatric conditions she became nervous, upset, and eventually refused to answer his questions. When she refused to sign a general release for all of her medical and psychiatric records, Petitioner ended the deposition.

    
    

11. Petitioner then filed his Motion for Dismissal on December 27, 1991.

    
    

12. After considering Petitioner's Motion for Dismissal, Mr. McPherson again talked to the Complainant. He understood from that conversation that she would not change her mind and that she did not want to talk any further about her mental and physical condition because it was too much of a burden on her to relive some events and would be an embarrassment to her family.

    
    

13. As a result of information extracted during the Complainant's deposition about certain aspects of her psychiatric and medical history, his conversation with her when she stated she would not testify further nor sign a general release, and research concerning the issues raised by Petitioner's Motion to Dismiss, Mr. McPherson determined that he could not go forward with the prosecution. Accordingly, the case against Petitioner was dismissed on February 10, 1992.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See Sections 57.111 and 120.57(1), Florida Statutes.

    
    

15. This case arises under the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, which provides, in pertinent part:

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs

    shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter

    120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

16. Paragraph (3)(e) of Section 57.111, Florida Statutes, states that a "proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency."

    
    

17. Paragraph (3)(b)3 of Section 57.111, Florida Statutes, provides that the term "initiated by a state agency" includes circumstances where the state agency "[w]as required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency."

    
    

18. The issuance of the Administrative Complaint in the underlying case (DOAH Case No. 91-6058) was the event that triggered the Department's duty to advise Dr. Wise of his clear point of entry. Accordingly, that is the time at which the underlying proceeding was "initiated" within the meaning of paragraph (3)(e) of Section 57.111, and it is at that point in time that an agency must show it had a reasonable basis for its action.

    
    

19. As noted by Hearing Officer Benton in his conclusions of law in Daniel Bruce Caughey v. Department of Insurance, DOAH Case No. 90-4473F (Final Order issued December 27, 1990):

    
    

    '[T]he burden was on the agency to prove -- once the licensee presented evidence showing that it was a prevailing small business party

    -- that its action in prosecuting the administrative complaint was substantially justified.' Department of Professional Regulation, Division of Real Estate v.

    Toledo Realty, Inc., 549 So.2d 715, 718 (Fla. 1st DCA 1989); Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

    
    

    The question for decision is whether probably cause to file the administrative complaint existed at the time the filing occurred, not whether the case might have been better handled at some later stage of

    the proceeding. See Larry Wayne Lindsey v. Department of Insurance and Treasurer, No. 88-3905F (DOAH; December 12, 1988). "If a

    proceeding 'had a reasonable basis in law and fact at the time it was initiated,' Section 57.111(3)(e), Florida Statutes (1989), the Florida Equal Access To Justice Act does not relieve even prevailing small business parties of paying their own attorney's fees and costs. The Act is designed to discourage unreasonable

    governmental action, not to paralyze agencies doing the necessary and beneficial work of government." Jack J. Rudloe and Gulf Specimen Co., Inc. v. Department of Environmental Regulation, No. 88-3421F (DOAH; Nov. 8, 1988) at p. 13.

    
    

20. The facts in this case are very similar to the facts in Keith Haynes,

    M.D. v. Dept. of Professional Regulation, Bd. of Medicine, DOAH Case No. 89- 2014F (Final Order Nov. 30, 1990), affirmed in pertinent part and remanded for further proceedings, 584 So.2d 656 (Fla. 4th DCA 1991), a case in which a medical doctor was charged by administrative complaint with several violations related to sexual conduct with a patient. The charges against Dr. Haynes were ultimately voluntarily dismissed as a result of evidentiary problems that came to light during the prosecution of the case; problems such as a complaining witness who died and another critical witness who became uncooperative. In disposing of Dr. Haynes' petition for attorney's fees and costs under Section 57.111, Florida Statutes, Hearing Officer Bradwell wrote:

    
    

    5. At the time that the probable cause panel considered the evidence contained in the investigative file in this case, it considered evidence which, if evidentiary problems could be overcome, one of the key witnesses had not later become uncooperative

    and the testimony was found credible at final hearing, would establish the violations recommended by the panel when it found probably cause. The probable cause panel's decision was based upon reasonable information which was made after meaningful inquiry. The fact that the prosecuting attorney, in preparing for trial, discovered numerous evidentiary problems plus at least one uncooperative witness which made further prosecution of this case problematic and difficult to prove, does not detract from the original determination of probable cause or that its actions were substantially justified when it initiated the action against Petitioner. (emphasis added)

    
    

21. Here, as in Haynes, supra, the evidence before the probable cause panel was more than sufficient, if believed by a fact finder, to establish the violations with which Dr. Wise was charged. Further, at the time of the probable cause determination it was reasonable for the probable cause panel to

expect that the Complainant would be a cooperative witness. Even though the Complainant had resisted some broad requests for information, she had cooperated with the Department's investigation of matters directly related to her accusations and had assured the Department of her future cooperation. The fact that the Complainant later became uncooperative does not detract from the fact that, at the time of the probable cause determination and the issuance of the administrative complaint against Dr. Wise, the probable cause panel's decision to go forward with the prosecution "had a reasonable basis in law and fact." Accordingly, it must be concluded that the Department's action was substantially justified and that the Petitioner is not entitled to an award of attorney's fees and costs in this case.

For all of the foregoing reasons, it is ORDERED:

That the Petitioner's application for an award of attorney's fees and costs is hereby DISMISSED and all relief requested by the Petitioner is hereby DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of September 1992.

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 4th day of September 1992.

APPENDIX TO FINAL ORDER IN CASE NO. 92-2052F

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

All proposed findings of fact submitted by the Petitioner have been accepted in substance, except as specifically noted immediately below:

Paragraph 10: Rejected as subordinate and unnecessary details.

Paragraph 11: Rejected as overbroad and as not fully supported by competent substantial evidence.

Paragraph 14: First sentence is accepted in substance. The remainder of Paragraph 14 is rejected as in part constituting argument, rather than proposed findings, and also as contrary to the greater weight of the evidence.

Proposed findings submitted by Respondent:

Paragraphs 1 through 6: Accepted in substance, but with a number of subordinate and unnecessary details omitted.

Paragraph 7: All but last sentence accepted in substance. Last sentence rejected as irrelevant to issues in this case or as, at best, subordinate and unnecessary details.

Paragraphs 8 through 15: Accepted in substance, but with a number of subordinate and unnecessary details omitted.

Paragraphs 16 through 18: Rejected as subordinate and unnecessary details.

Paragraph 19: Basic information accepted, but most details rejected as subordinate and unnecessary.

Paragraph 20: Rejected as subordinate and unnecessary details. Paragraph 21: Accepted.

Paragraphs 22 and 23: Rejected as subordinate and unnecessary details.

Paragraph 24: Basic information accepted, but most details rejected as subordinate and unnecessary.

Paragraphs 25 through 28: Accepted in substance.

COPIES FURNISHED:

Mark P. Lang, Esquire Lang & Baker

Post Office Box 2127 Orlando, Florida 32802-2127

Mary B. Radkins, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

George Stuart Secretary

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-002052F

Orders for Case No: 92-002052F