STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES LITZ SHIENVOLD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3038

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 31, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Howard J. Hochman, Esquire

1320 South Dixie Highway, Suite 1180 Coral Gables, Florida 33146

For Respondent: Claire D. Dryfuss, Esquire

Assistant Attorney General Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to an unconditional license to practice medicine in the State of Florida; specifically, a license that does not include a requirement to establish a monitoring contract with the Physician Recovery Network.

PRELIMINARY STATEMENT

The Board of Medicine approved Petitioner's application for licensure to practice medicine by endorsement, but with the condition that Petitioner be required to enter into a monitoring contract with the Florida Physician Recovery Network. Petitioner challenged the condition that was attached to the approval of the application, and this proceeding followed.

At the formal hearing, Petitioner testified on her own behalf and presented the testimony of Stanley G. Garner, M.D., who is Petitioner's treating psychiatrist. Dr. Garner was accepted as an expert witness in the field of psychiatric medicine. Petitioner presented seven exhibits, five of which were accepted into evidence. Petitioner Exhibit 5, the deposition of Phineas Hyams,

M.D., and Petitioner Exhibit 6, the deposition of James Michael Cochran, M.D., were rejected because they are not relevant to this proceeding. Respondent presented the testimony of Roger A. Goetz, M.D. and Dorothy J. Faircloth. Dr. Goetz is the director of the Physician Recovery Network and was accepted as an expert in the Florida Department of Professional Regulation's Impaired Practitioner Program. Ms. Faircloth was, at the time of the formal hearing, the Acting Executive Director of the Florida Board of Medicine. Respondent presented one exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied to the Board of Medicine for licensure by endorsement as a physician in the State of Florida. The Board of Medicine is the regulatory agency in the State of Florida charged with the duty to regulate the practice of medicine in the state, including the licensure of physicians.

   
   

2. Petitioner has been in psychotherapy as a patient of Dr. Stanley G. Garner since 1986. Dr. Garner was qualified and accepted as an expert witness in the speciality of psychiatric medicine. Petitioner began psychotherapy with Dr. Garner and has remained in therapy with him on a voluntary basis. The purpose and emphasis of Petitioner's psychotherapy has been the identification and resolution of ongoing family problems, including marital and divorce issues, which have been imposed upon an earlier history of being raised in a dysfunctional family. Petitioner was very upset when she first saw Dr. Garner in 1986 due to events that resulted in protracted divorce proceedings. The purpose of Petitioner's therapy has never been to assess or ensure Petitioner's fitness to practice medicine since this was never a therapeutic issue to either the Petitioner or to Dr. Garner. Petitioner's psychotherapy has been directed towards improving her comfort, happiness, and quality of life.

   
   

3. Dr. Garner has spent over 400 hours in therapy with Petitioner and has diagnosed Petitioner as having Dysthymia, which is a fairly recent term for a depressive condition that used to be called neurotic depression or depressive neurosis. Dysthymia was described by Dr. Garner as being an extremely common condition and one that is shared by many of his physician patients without impairment of their ability to perform as physicians with reasonable care and skill. According to the Diagnostic and Statistical Manual of the American Psychiatric Association, the diagnosis of Dysthymia has to include the presence of at least two of the following conditions while depressed: (1) poor appetite or over eating, (2) insomnia or hypersomnia, (3) low energy or fatigue, (4) low self esteem, (5) poor concentration or difficulty making decisions, (6) feelings of hopelessness. Dysthymia does not usually lead to sudden changes in personality or behavior, and Dr. Garner has noted no sudden changes in Petitioner's personality during the course of his treatment of her.

4. Petitioner's application reflected that she had undergone psychotherapy as a patient of Dr. Garner since 1986. In response to the application, Respondent required information from Dr. Garner as to Petitioner's treatment.

   By his letter of July 17, 1991, Dr. Garner provided Respondent with historical information as to Petitioner's condition and her psychotherapy and advised Respondent, in pertinent part, as follows:

   
   

   Dr. Shienvold has been in psychotherapy with me, on a regular basis, since 9/13/86 for treatment of her depressive disorder. She is currently being seen weekly in individual psychotherapy and weekly in group psychotherapy. The frequency of her visits has varied during the course of her treatment. Currently, she is taking Prozac

   20 mg. each morning; this medication seems to be helping her cope with the many pressures of her current life situation. She was not on medication during most of her time in therapy.

   * * *

   Dr. Shienvold's diagnosis is Dysthymia (300.40 DSM III-R). She has never shown any evidence of a psychotic disorder and has no history of, nor propensity for, substance abuse. Her prognosis is excellent, but she definitely needs ongoing psychotherapy for the foreseeable future. There are still many current vocational, financial, familial, and parental pressures which impede her more rapid progress. I have no doubt, however, that she will overcome these obstacles and continue to be a dedicated and hard working physician.

   This applicant for medical licensure, in my professional opinion, will certainly be able to practice medicine with reasonable skill and safety. Given her very high level of intelligence and her rapidly increasing fund of knowledge and experience, along with her genuine caring devotion to her patients, I am convinced that Dr. Shienvold will become a truly outstanding physician and do honor to our profession.

   If my comments seem flowery and excessive, it is because in my almost 35 years as a physician, and as a psychiatrist to a large number of fellow physicians, I have only rarely seen someone as qualified to practice Medicine as Frances Shienvold.

5. As part of the application process, Respondent arranged for the Physician's Recovery Network (PRN) to have Petitioner examined by an independent psychiatrist. This examination was performed in January 1992 by Dr. Burton Cahn. On February 24, 1992, Dr. Cahn submitted his report to Dr. Goetz by letter. Dr. Cahn's letter provided, in pertinent part, as follows:

   
   

   At the present time, I see no reason why Dr. Shienvold would be unable to practice medicine because of a mental or emotional

   condition. She is not psychotic. She is not a substance abuser. She is not at this time significantly depressed. She does not represent a danger to herself or to others.

   I therefore find no reason on a mental or emotional basis that Dr. Shienvold is unable to practice medicine.

   
   

6. The record in this proceeding is not clear when the idea that a monitoring contract with the PRN would be deemed necessary by the Board of Medicine. It is apparent from Dr. Garner's follow-up letter to the Board of Medicine on January 16, 1992, that Petitioner was aware at that time that such a condition may be imposed on her licensure by Respondent. Dr. Garner's letter of January 16, 1992, provided, in pertinent part, as follows:

   
   

   It is my professional opinion that the assignment of Dr. Shienvold to the Physicians Recovery Network was an error. The requirement that she sign an Advocacy Contract with "PRN" is inappropriate for her situation, and would be for anyone else with her particular medical/psychological history. There is certainly no need for any kind of "monitoring" of her continuation in psychotherapy. . . .

   * * *

   In summary, I believe that Dr. Shienvold should be granted her Florida license to practice medicine without any special conditions or restrictions. . . .

   * * *

   Her diagnosis remains the same (Dysthymia), and her prognosis is excellent.

   
   

7. By letter dated February 26, 1992, Dr. Goetz advised the Board of Medicine that "Dr. Cahn finds no reason why Dr. Shienvold would be unable to practice medicine with reasonable skill and safety." Dr. Goetz's letter of February 26, 1992, also provided the following: "If the Board chooses to license this applicant, I would be pleased to monitor Dr. Shienvold's continuing treatment with a PRN contract."

8. By Order dated March 16, 1993, the Board of Medicine approved Petitioner's application for licensure by endorsement with a condition. The Board's Order provided, in pertinent part, as follows:

   
   

   1. You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to APPROVE with certain requirements your application for licensure as a physician by endorsement.

   2. The Board of Medicine reviewed and considered your application by endorsement on October 2, 1992, in Miami, Florida and has determined that said licensure by endorsement be APPROVED with the requirement that you establish a monitoring contract with the Physician Resource Network (PRN). The Board stated as grounds therefore:

      That you have a history of successful psychotherapy for a depressive disorder that requires ongoing treatment. Although your ability to practice medicine has not been compromised, it is appropriate to establish monitoring to ensure continued successful treatment.

      At its February 6, 1993, meeting in Jacksonville, Florida, the Board denied your request for reconsideration of this matter. The requirement set forth herein is a requirement for licensure and should not be interpreted or applied as disciplinary action by the Board.

      
      

9. The Physician's Resources Network referred to by the foregoing Order is the same organization as the Physician's Recovery Network. The PRN is also referred to as the Impaired Practitioner Program.

   
   

10. The purpose of the PRN program is to protect the public by assuring the health and well being of licensed health practitioners in the State of Florida.

    
    

11. Dr. Garner's testimony at the formal hearing was consistent with the opinions he expressed in his two letters to Respondent.

    
    

12. Petitioner has been responsible in securing appropriate medical care for herself including psychiatric care, and has been a cooperative patient while under Dr. Garner's care. For most of her psychotherapy, Petitioner has been seeing Dr. Garner twice a week. At the time of the formal hearing, she was seeing him once a week. Dr. Garner has no reason to believe that she would irresponsibly discontinue her therapy or become uncooperative in the foreseeable future. Petitioner has not suffered severe Dysthymia, but she has been at times severely depressed. Those occasions when she was severely depressed were in reaction to her mother's death and in reaction to her abandonment by her father and by her husband.

13. Prior to entering medical school, Petitioner held a Ph.D. in cell biology and anatomy. Over the past seven years she has gone through a divorce, reconciled with her mother, suffered the death of her mother, become estranged from her father and stepmother, and completed medical school. At the time of the formal hearing, she had almost completed her residency.

    
    

14. Petitioner has never been found to be unfit to practice medicine with requisite levels of skill and care at any time during her residency. Petitioner has participated in a residency program at Jackson Memorial Hospital for approximately three years. The residency program includes participation in out patient clinics at Mt. Sinai Hospital and service in regular hospital wards, the emergency room, intensive care units for both neonatal patients and other pediatric patients. As a resident, Petitioner worked under the general supervision of a licensed physician, but she had ample opportunity to independently exercise her professional responsibilities and judgment.

    
    

15. Petitioner's ability to practice medicine with fitness and safety has not been impaired by Dysthymia, any other mental or emotional condition, or the medication she takes for the Dysthymia. Her memory has not been impaired.

    
    

16. At any given time, a person suffering from depression can have difficulty in concentrating or in making decisions. The evidence in this proceeding established that Petitioner's ability to concentrate and to make decisions in the day to day practice of her profession has not been impaired. Her interest in her patients has not been impaired. She does not suffer from unusual fatigue.

    
    

17. Petitioner has various medical conditions that add stress to her life. She suffers from sinus problems which have resulted in surgery and ongoing treatment for infections, hypertension, hyperthyroidism, gastritis which includes duodenitis, and esophageal reflux. Petitioner continues to suffer financial and family problems relating to her father, stepmother, brother, and son. Petitioner can still become very upset at times. It is anticipated that Petitioner will remain under Dr. Garner's care for at least one more year. Petitioner intends to continue in psychotherapy until her symptomology is fully resolved. Dr. Garner considers Petitioner's prognosis to be excellent, but is of the opinion that she needs ongoing psychotherapy for the foreseeable future. Dr. Garner is of the opinion that Petitioner could practice medicine with the requisite skill and safety if she were to discontinue psychotherapy completely.

    
    

18. At the time of the formal hearing, Petitioner had been taking Prozac for approximately two years. Prozac is an antidepressant which helps Petitioner keep her mood at a high level while she deals with difficult problems in psychotherapy. Dr. Garner is of the opinion that Petitioner can practice medicine with the requisite level of skill and safety without Prozac. He is of the opinion that it is best for her to continue to take Prozac and that there are no significant side effects to the medication.

    
    

19. Dr. Roger Goetz is the director of the PRN program and was accepted as an expert in Respondent's impaired practitioner program. The purpose of a monitoring contract with the PRN is to monitor whether there is a failure of a participant to progress in psychotherapy, if there is a change in medication, if there is any discontinuance of therapy, or if there is a change of treating professionals. Dr. Goetz considers the monitoring contract to be the least intrusive way to establish a relationship between the participant and the PRN program.

20. Dr. Goetz is of the opinion that it is in Petitioner's best interest and the best interest of the public that she be in a monitoring contract with the PRN as a condition of her licensure because the contract would provide confirmation that Petitioner is doing well in her therapy before it became necessary to institute a disciplinary action or investigation, the contract would ensure that no abnormal transference was going on, and the contract would, in light of her psychiatric treatment, give assurance that she poses no problem to the public welfare. Dr. Goetz made it clear that he was testifying as the Director of the PRN and that he was not attempting to speak on behalf of the Board of Medicine. He also made it clear that it was the responsibility of the Board of Medicine to decide whether a practitioner needs services from the PRN and that the PRN becomes involved after the Board of Medicine determines that a practitioner needs its services.

    
    

21. The terms and conditions of the monitoring contract would be negotiated by the parties after the Board of Medicine enters a Final Order that requires the imposition of a monitoring contract. Because those negotiations have not occurred, Dr. Goetz could only testify as to the terms he would expect to be contained in a monitoring contract. In addition to the reports required of the treating psychiatrist, the contract would confer on the PRN the authority to require Petitioner to withdraw from practice for evaluation if the PRN determines that "any problem" has developed. The monitoring contract is expected to be of at least five years duration and, according to Dr. Goetz, be imposed as long as Petitioner is in therapy without regard to the purpose or the nature of her therapy.

    
    

22. Dr. Garner is of the opinion that PRN monitoring would impede rather than ensure Petitioner's progress in therapy because it would diminish the underlying confidentiality of therapy.

    
    

23. From the proceedings before the Board of Medicine, it is apparent that the board considered the information contained in Petitioner's application file, including the opinions expressed by Dr. Garner and by Dr. Cahn before entering its Order of March 16, 1993. At the formal hearing, there was no articulation of the reasons the Board of Medicine had for determining that Petitioner's history of psychotherapy and the fact that the psychotherapy was ongoing justified the imposition of the monitoring contract with the PRN.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to the licensure she seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Young v. Department of Community Affairs, 18 F.L.W. S476 (Fla. September 10, 1993). As the party asserting the affirmative of the issue, Petitioner has the ultimate burden of persuasion throughout this proceeding. Petitioner has established that her ability to practice medicine with the requisite skill and safety has not been impaired by either her mental condition or by her medication, that it is unlikely that her ability will become impaired in the foreseeable future, and that the imposition of the monitoring contract will likely impede her psychotherapy.

26. In this proceeding, Respondent recognizes that Petitioner meets the criteria for licensure as a physician by endorsement. Petitioner presented credible, competent evidence that she should be licensed to practice medicine without the condition that she enter a monitoring contract with the PRN. Dr. Garner was clearly of the opinion that Petitioner met the criteria for licensure and that neither her condition or medication impaired her abilities to perform her professional responsibilities. Dr. Garner was also of the opinion that a monitoring contract was contra-indicated and would impair the psychotherapy process. Dr. Cahn performed an independent psychiatric examination on Petitioner, but he could " . . . find no reason on a mental or emotional basis that Dr. Shienvold is unable to practice medicine."

    
    

27. The authority of the Respondent to impose reasonable conditions on a physician licensure under appropriate circumstances is not at issue. Respondent clearly has that authority. See, Sections 458.313(7),(8) and 458.331(1)(s), Florida Statutes.

    
    

28. Although the ultimate burden of persuasion did not pass from the Petitioner to the Respondent, the burden of going forward with the evidence did pass to the Respondent once Petitioner established her entitlement to licensure without condition. Respondent has cited no rule that would mandate that an applicant for licensure by endorsement who is undergoing psychotherapy to enter into a monitoring contract with the PRN. In the absence of rule, Respondent is required to explicate the policy considerations that underlie the exercise of its discretionary authority to impose the condition on Petitioner's licensure. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). In this proceeding, Respondent has failed to explicate its rationale for imposing the challenged condition on Petitioner's licensure. Dr. Goetz is not a psychiatrist and is not competent to testify as to whether Petitioner's psychotherapy should be monitored to ensure her continued ability to practice medicine with the requisite skill and safety. While Dr. Goetz was accepted as an expert witness as to the impaired practitioner program, his testimony was from the perspective as Director of the PRN and did not establish why the Respondent should impose the challenged condition on Petitioner's licensure to practice medicine. In this proceeding, there has been no evidence to rebut the very clear and explicit testimony of Dr. Garner. The written opinion expressed by Dr. Cahn is consistent with the opinions of Dr. Garner. The unrebutted evidence in this proceeding establishes that Petitioner's licensure to practice medicine in Florida should be issued without condition.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which unconditionally

grants Petitioner's application for licensure to practice medicine by endorsement.

DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3038

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 25, 26, 27, 29, 32, 33, 34, and 40 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted by the Recommended Order or are subordinate to the findings made.

3. The proposed findings of fact in paragraphs 19, 20, 21, 23, 24, 28, 30, 31, 35, 36, 37, 42, and 43 are subordinate to the findings made.

4. The proposed findings of fact in paragraphs 38 and 41 are rejected as being unnecessary as findings of fact, but are consistent with the conclusions reached.

5. The proposed findings of fact in paragraph 39 are rejected as being speculative.

6. The proposed findings of fact in paragraph 44 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 8, 10, 11, 13, and 14 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6 and 9 are adopted in part by the Recommended Order. These proposed findings of fact are, in part, rejected as being inconsistent with the findings made.

3. The proposed findings of fact in paragraph 12 are adopted as being opinions expressed by Dr. Goetz.

COPIES FURNISHED:

Howard J. Hochman, Esquire

1320 South Dixie Highway, Suite 1180 Coral Gables, Florida 33146

Claire D. Dryfuss, Esquire Assistant Attorney General Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0770

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0770

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 ten 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: 93-003038

Orders for Case No: 93-003038