STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NOS. 93-7122

) 93-7123

JEFFREY L. KATZELL, M.D., ) 93-7124

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on December 12-15, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Hugh R. Brown, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Mark A. Dresnick, Esquire

Sean M. Ellsworth, Qualified Representative 2665 South Bayshore Drive, Suite 201

Miami, Florida 33133

STATEMENT OF THE ISSUES

Whether Respondent is guilty of violating Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 12, 1992, Petitioner, then the Department of Professional Regulation, filed a nine-count administrative complaint against Respondent, Jeffrey L. Katzell, M.D., alleging that he violated Sections 458.331(1)(j), (t), and (x), Florida Statutes, regarding his treatment of three patients. (DOAH Case No. 93-7122). On May 10, 1993, Petitioner, filed a nine-count administrative complaint against Respondent, alleging that he violated Sections 458.331(1)(j), (t), and (x), Florida Statutes, regarding his treatment of three other patients. (DOAH Case No. 93-7123.) On May 12, 1993, Petitioner filed a seven count administrative complaint against Respondent, alleging that he violated Section 458.331(1)(c), Florida Statutes, by being found guilty of a crime which directly relates to the practice of medicine involving seven patients. On December 21, 1993, Petitioner requested the Division of Administrative Hearings assign a Hearing Officer to conduct the final hearings. By order dated January 27, 1994, the cases were consolidated.

The cases were noticed for final hearing on June 6-10, 1994. On April 7, 1994, Petitioner filed a motion to amend the administrative complaint in DOAH Case No. 93-7124. The motion was granted. By telephone conference on May 18, 1994, Respondent made an ore tenus motion to continue the final hearing. The motion was granted and the final hearing was rescheduled for October 3-7, 1994. By telephone conference on June 22, 1994, Respondent made an ore tenus motion for continuance of the final hearing. The motion was granted and the final hearing was rescheduled for December 12-16, 1994.

At the final hearing Petitioner called six witnesses and presented the testimony of Dr. Patrick Cook by deposition. Petitioner's Exhibits 1-16 were admitted in evidence. Respondent testified in his own behalf and called 29 witnesses. Respondent's Exhibits 1-19, and 21-26 were admitted in evidence. Respondent's Exhibit 20 was proffered.

At the final hearing, the record was left open until January 20, 1995, for the filing of the deposition of Dr. Patrick Cook. By Order dated February 6, 1995, the deadline for closing the record in these cases was extended to March 1, 1995. The parties agreed to file their proposed recommended orders within 30 days of the closing of the record. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Jeffrey L. Katzell, M.D. (Dr. Katzell), is and has been at all material times to this proceeding a physician, licensed in the State of Florida by the Petitioner, Agency for Health Care Administration (AHCA). Dr. Katzell was issued license number ME 0050379.

   
   

2. Dr. Katzell is a board certified orthopedic surgeon. He entered the private practice of orthopedic surgery in Palm Beach County in 1987.

   
   

3. Prior to the allegations which are the subject of this proceeding, Dr. Katzell has never been the subject of a medical malpractice complaint or any form of disciplinary action by the Board of Medicine in any state.

   
   

   PATIENT T.B.

   
   

4. T.B. is the female patient referred to in Counts 1-3 of DOAH Case No. 93-7122, DPR Case No. 92-3917.

   
   

5. From December 12, 1991, through February 6, 1992, Dr. Katzell treated

   T.B. who was at that time 24 years old. Her chief complaints were of pain in her back, neck, wrist and chest as a result of trying to catch herself from falling while walking down some stairs. She complained of chest pain that felt like a band around her chest. She had pain when breathing.

   
   

6. On the December 12, 1991, visit, a female medical assistant asked T.B. to disrobe and put on an examining gown which opened down the back. T.B. wore her panties under the gown and no bra.

   
   

7. Dr. Katzell examined T.B. in the presence of a female medical assistant. As part of his examination, he palpated T.B.'s sternum and examined her ribs by placing his left hand through the armhole of the examining gown and his right hand on her back.

8. Dr. Katzell moved the fingers of his left hand in different locations on her chest and asked T.B. if it hurt in those areas. During the examination, the palm of Dr. Katzell's hand touched the nipple of T.B.'s breast. It is possible for a physician to examine a female patient's sternum and ribs without touching her nipples but it is also possible that a physician could accidently touch the nipple of the breast while performing such an examination.

   
   

9. It was appropriate for Dr. Katzell to examine T.B.'s sternum and ribs, given the nature of her complaints. It was not below the standard of care nor does it constitute sexual activity or sexual misconduct for an orthopedic surgeon to have physical contact with the breast in the manner described by T.B. during the course of performing an examination of the chest.

   
   

10. On January 23, 1992, T.B. returned to Dr. Katzell for a follow-up examination. She was complaining of pain in the area of the left sciatic joint which is located in the buttock. For the examination she was wearing a T-Shirt, panties, and a bra underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her a cortisone shot in her buttock. She removed her panties.

    
    

11. Dr. Katzell gave her an injection of cortisone in her buttock while she lay face down on the examining table. He left the room for a short period of time. When he returned, he rubbed the medication in to diffuse the medicine. Then he asked her to turn over and he began to manipulate her legs to see if the shot had worked. The examination includes flexing and extending the legs, as well as abduction (spread eagle) and adduction (legs crossed). T.B. did not have any panties on while he was putting her legs in different positions and her genital area was exposed.

    
    

12. It was appropriate for Dr. Katzell to check T.B.'s range of motion, but it was inappropriate for him to perform the examination while the lower half of her body, including her genitalia were exposed. To have performed the range of motion test while the patient's genitalia was exposed was below the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances.

    
    

13. On February 6, 1992, T.B. returned for a follow up visit, continuing to complain of low back pain related to the sciatic joint. Again T.B. was asked to disrobe and put on an examining gown. She wore two tank tops, a bra, and panties underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her another cortisone shot. She removed her panties.

    
    

14. Another man was present when Dr. Katzell gave T.B. the injection. The man and Dr. Katzell left the examining room after the injection was administered. Dr. Katzell returned a short time later and told T.B. that he probably needed to manipulate the shot into the buttock. He opened the back of her gown and started to rub her buttock with both hands.

    
    

15. Cortisone is a non-absorbable medication. The standard of care for orthopedic surgery recognizes that it is helpful and appropriate to massage the area of the injection to diffuse the medication.

16. After Dr. Katzell massaged T.B.'s buttocks, he took his right hand and pulled her leg open. Dr. Katzell then made a sweeping motion with his hand from her vagina to her rectum. T.B. jumped to the side and pulled the gown closed. She asked him why he was giving her a shot in the buttock when it was her hip that hurt. Dr. Katzell told her that if she did not like it that she could come back for more. T.B. started to cry.

    
    

17. The touching of T.B.'s genitalia from her vagina to her rectum was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching was sexual misconduct in that the touching was a violation of the patient-physician relationship through which Dr. Katzell intentionally touched the vagina of T.B. and such touching was outside the scope of generally accepted treatment and examination of the patient.

    
    

18. T.B. left Dr. Katzell's office and went to her workers' compensation attorney complaining of her treatment from the doctor.

    
    

19. T.B. told her husband what had happened and they called the police. As a result of the above-described events T.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was

    filed against Dr. Katzell bearing Case No. 92-28364-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.B. and the Court adjudicated Dr. Katzell guilty.

    
    

20. T.B. has filed a civil action for monetary damages against Dr. Katzell.

    
    

    PATIENT A.F.

    
    

21. A.F. is the female patient referred to in Counts 4-6 of the Administrative Complaint in DOAH Case No. 93-7122, DPR Case No. 92-3917.

    
    

22. A.F. was involved in a head on automobile accident on August 30, 1991. At that time she was 30 years old. After the accident she was treated by Dr. Michael Nathanson, a chiropractor. He referred her to Dr. Katzell for a complete orthopedic examination.

    
    

23. Dr. Katzell first saw A.F. on October 9, 1991. She was complaining of pain in her sternum, sciatic pain, neck pain, and pain in the middle and low portion of her back. A.F. told Dr. Katzell that she had severe pain in sternum but that she did not have any bruises on her breasts. Her chiropractor had advised her that she had cracked two ribs.

    
    

24. During Dr. Katzell's first examination of A.F. no other persons were present in the room. A.F. was wearing an examining gown, panties, and a bra. While A.F. was standing, Dr. Katzell pulled down her examining gown and removed her bra straps from her shoulder, exposing her sternum and breasts. She tried to pull the gown back up but he pushed it back down.

    
    

25. Given the nature of A.F.'s complaints relating to her sternum and ribs, it was appropriate for Dr. Katzell to examine the sternum, to palpate the costochondral junction where the ribs meet the sternum, and to palpate the ribs. Dr. Katzell palpated the ribs and the costochondral junction during his examination. While he was examining her, his fingers did come in contact with A.F.'s breasts.

26. The standard of care is not violated when a physician's hand comes in contact with the breast during an examination of the anterior chest such as was performed by Dr. Katzell. By touching A.F.'s breasts, Dr. Katzell did not engage in sexual activity.

    
    

27. After her visit with Dr. Katzell, A.F. told Dr. Nathanson that she did not think that Dr. Katzell's examination had been appropriate.

    
    

28. On October 29, 1991, A.F. returned to Dr. Katzell for a follow-up visit. She was complaining of hip pain and sciatic pain, with a pain in the crease of her leg where the elastic of her panties would be. She put on the examining robe and left on her panties and bra. No attendant was present during the examination.

    
    

29. A.F. was standing while Dr. Katzell was examining her. He put his thumbs underneath her panties and palpated the inguinal crease (where the elastic of the panties would be located). As he was examining her, he put his right thumb in the crease in the vaginal area across her clitoris and went down underneath in the vaginal area. She told him that it did not hurt there and he went back up across the same area.

    
    

30. Dr. Katzell's touching of A.F.'s clitoris and her vaginal area was unjustified and inappropriate. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. The touching was also sexual misconduct.

    
    

31. On November 11, 1991, A.F. returned to see Dr. Katzell for the results of her MRI test. Dr. Katzell asked her twice to put on the examining robe but she refused to do so.

    
    

32. A.F. called Petitioner and filed a complaint against Dr. Katzell. Later A.F. instituted a civil action against Dr. Katzell.

    
    

33. Additionally, as a result of the above-described events A.F. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number 92-28366- MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of A.F. and the Court adjudicated the Respondent guilty.

    
    

    PATIENT BB

    
    

34. Patient B.B. is the female patient referred to in Counts 7-9 of the Administrative Complaint in DOAH Case No. 93-7122 and DPR Case No. 92-3917.

    
    

35. B.B. was a nurse in a hospital where Dr. Katzell performed surgery.

    In the summer of 1990, she began experiencing pain in her left hip, radiating to her left knee and foot and causing her to limp. Dr. Katzell noticed her limp and told her that a cortisone shot could help. She agreed to the injection.

    They went to the cast room in the emergency room of the hospital. Dr. Katzell asked her to put on an examining gown while he stepped out of the room. She complied.

36. Dr. Katzell gave B.B. an injection and told her that it was not necessary for him to see her in his office. He did not charge B.B. for the treatment. It is not unusual for physicians to perform courtesy examinations for the nurses.

    
    

37. B.B. experienced some minimal relief, but the pain returned in a couple of weeks. Dr. Katzell suggested another injection. They went to the cast room where the first examination had taken place. On the way to the cast room, B.B. told Dr. Katzell that she was also experiencing pain in her tailbone that resulted from an accident she had while giving childbirth years before. He told her that he would need to do a vaginal examination to determine where to place the shot in her tailbone. He performed a vaginal examination by inserting his fingers into her vagina. He did not perform a rectal examination. No one else was present during Dr. Katzell's examination of B.B.

    
    

38. Vaginal examinations are not used in the diagnosis or treatment of back pain, coccydynia (pain in the tailbone) or to locate a favorable injection site for the treatment of these conditions.

    
    

39. The giving of the vaginal examination fell below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The vaginal examination also constituted sexual misconduct.

    
    

40. B.B. wrote a letter to Petitioner concerning Dr. Katzell's examination but she was not specific about the nature of the complaint. She was later contacted by one of Petitioner's investigators.

    
    

41. As a result of the above-described events B.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number, 92-12233-CF. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of B.B. and the Court adjudicated Dr. Katzell guilty.

    
    

    PATIENT D.B.

    
    

42. Patient D.B. is the female patient referred to in Counts 1-3 of the Administrative Complaint in DOAH Case No. 93-7123 and DPR Case No. 92-14422.

    
    

43. D.B. first saw Dr. Katzell on May 16, 1991. She was complaining of instability with her left knee. At the time she was 24 years old. D.B. had had a patella tendon anterior cruciate ligament reconstruction in 1986. She saw Dr. Katzell again on June 13, 1991 and July 9, 1991. Dr. Katzell recommended arthroscopic anterior cruciate ligament reconstruction on her left knee because of a rupture of the anterior cruciate ligament.

    
    

44. On July 15, 1991, D.B. was admitted to J.F.K. Medical Center, where Dr. Katzell performed surgery on her left knee. After the surgery, D.B.'s left leg was bandaged from the groin area to half way down her calf. On one of his hospital post-operative visits, Dr. Katzell came to check D.B.'s dressing. D.B. was wearing a hospital gown and no underpants, her left leg was in the air in a continuous motion machine, and she was on a bedpan when Dr. Katzell came into her room. While Dr. Katzell was checking her dressings, he rubbed his hand down her crotch.

    
    

45. There was no medical necessity for rubbing across the crotch area of

    D.B. when Dr. Katzell changed her dressing while she was in the hospital.

46. D.B., who was accompanied by her mother, saw Dr. Katzell in his office on July 26, 1991. He removed the staples.

    
    

47. D.B. next saw Dr. Katzell on August 16, 1991. She put on an examination gown and kept on her T-shirt, bra, and panties underneath the gown. Dr. Katzell performed a range of motion test, which required D.B. to lie on the examining table, bend the leg at the knee while the leg was raised in the air, and gradually lower the leg. During the examination, Dr. Katzell placed his hand between her legs and slid it down the middle of the vaginal area from top to bottom.

    
    

48. Dr. Katzell next saw D.B. in his office on September 13, 1991. D.B. was dressed in an examination gown with a shirt, panties and bra underneath the gown. Dr. Katzell performed another range of motion test and again touched her in her vaginal area, down the middle of her crotch from top to bottom.

    
    

49. On October 11, 18, November 19, and December 19, 1991, D.B. returned for follow-up visits. On each visit, D.B. removed her shorts and put on an examination gown. During each visit Dr. Katzell measured her leg near the groin area for atrophy as she stood up with her back to him as he was sitting on a stool. While he was measuring during each visit, he briefly rubbed his hand between her legs in her crotch.

    
    

50. On January 17, 1992, D.B. went to see Dr. Katzell at his office. She was wearing bike shorts and a sweater. She had intentionally worn bike shorts because she felt that the doctor could measure over the shorts and there would be no necessity for removing her shorts. The bike shorts had a built-in pantie so D.B. did not wear any additional underpants. Dr. Katzell asked her to remove the bike shorts and the sweater and put on a gown, explaining that he could not measure over the spandex of the bike shorts. It would not have been medically appropriate to measure the leg over the spandex because the bike shorts compress the muscles of the upper leg.

    
    

51. D.B. removed her shorts and sweater and put on the gown, which left her wearing only the gown and a bra. Dr. Katzell performed a range of motion test and measured her leg for atrophy. When he was measuring her leg, he touched her in her vaginal area as he had done previously.

    
    

52. There was no medical necessity that required Dr. Katzell to touch D.B. in her vaginal area while he was performing range of motion tests and measuring her leg for atrophy.

    
    

53. The touching of D.B. in her crotch while she was in the hospital and during her subsequent office visits was inappropriate and fell below the level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constituted sexual misconduct.

    
    

54. As a result of the above-described events, D.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of D.B. and the Court adjudicated Dr. Katzell guilty.

    
    

55. D.B. has made a civil claim against Dr. Katzell related to the above- described incidents.

    PATIENT T.C.

    
    

56. Patient T.C. is the female patient referred to in Counts 4-6 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422.

    
    

57. Dr. Katzell treated T.C. for chronic knee derangement from December 4, 1987 to November 18, 1991. During that time, he operated on her knee two times for internal derangement of the knee.

    
    

58. On March 12, 1991, T.C. went to Dr. Katzell complaining of pain and swelling in her right knee. She also had right sided low back pain radiating into her right hip. Dr. Katzell examined her right hip and palpated the area in the inguinal crease. He moved her underpants to one side, exposing her vagina while he was palpating the inguinal crease. Dr. Katzell did not touch the vagina during the examination. Depending on the cut of T.C.'s underwear it may have been necessary to move her underwear to one side in order to palpate the inguinal crease.

    
    

59. Dr. Katzell's actions on March 12, 1991, did not constitute sexual misconduct nor was it below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

60. On November 18, 1991, T.C. went to Dr. Katzell's office for a follow- up visit, complaining of continued pain in her right knee. Dr. Katzell asked her to disrobe and put on an examination gown. She complied, leaving on her underwear.

    
    

61. During the examination of her knee, Dr. Katzell began to rub T.C. above her knee and on the inside of her right thigh. He touched her vaginal area over her underwear with his fingers. She moved forward when he touched her and he removed his hand.

    
    

62. There was no medical necessity to touch the vaginal area of a patient during the examination of a knee. The touching of T.C.'s genitalia during the knee examination was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constitutes sexual misconduct.

    
    

63. Following the knee examination of November 18, 1991, T.C. immediately left Dr. Katzell's office and never returned.

    
    

64. As a result of the above-described incident, T.C. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28365-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.C. and the Court adjudicated the Respondent guilty.

    
    

65. T.C. has filed a lawsuit against Dr. Katzell seeking monetary damages.

    
    

    PATIENT S.M.

    
    

66. Patient S.M. is the female patient referred to in Counts 7-9 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422.

67. On July 22, 1991, S.M. went to see Dr. Katzell for an independent medical evaluation relating to a slip and fall at her workplace. S.M. was complaining of upper and lower back pain, bilateral hip pain, mild knee pain and some right shoulder discomfort.

    
    

68. S.M. was given an examination gown to wear. She put on the gown, leaving on her slip, bra and g-string panties. Dr. Katzell began to examine her and told her she would have to remove her slip. He left the room while she did so. There was no attendant in the room during the examination. She lay on the examining table and he stretched her legs at 90 degree angles. He had his hand underneath the gown, between her legs and on top of her vagina. He would rub the crease area between S.M.'s thigh and pubic area and move his hand across the vaginal area as he went from one to side to the other.

    
    

69. There was no medical purpose for Dr. Katzell to touch S.M.'s vaginal area during his examination. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. The touching also constituted sexual misconduct.

    
    

70. As a result of the above-described incident, S.M. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of S.M. and the Court adjudicated him guilty.

    
    

71. S.M. has filed a civil action against Dr. Katzell for monetary damages.

    
    

    MITIGATION

    
    

72. In 1992, after the complaints surfaced concerning the above-referenced patients, Dr. Katzell voluntarily stopped his practice and sought help through the Physicians Recovery Network (PRN). He entered into a five-year supervisory contract with PRN and was participating in the contract at the date of the hearing. He agrees to remain under contract with PRN as long as necessary to demonstrate that he is safely practicing medicine. Dr. Katzell was in good standing with his agreement with PRN and had no reported problems as of the date of the final hearing.

    
    

73. PRN referred Dr. Katzell to the Behavior Medicine Institute in Atlanta, Georgia, where he underwent an out-patient cognitive behavior type of treatment for sexual problems. The treatment program is headed by Dr. Gene Abel. The recidivism rate for physicians treated in Dr. Abel's program is 0 percent.

    
    

74. As a result of the charges made by the six patients, Dr. Katzell has made changes in his orthopedic practice. These changes in methods include always examining a female patient in the presence of a chaperon or attendant and explaining to the patient the need for any examinations which could be perceived as being in close proximity to a private area. When patients are to receive a cortisone injection, his female office staff will drape the area outside the presence of Dr. Katzell and he will return simply to administer the injection in the presence of his attendant. The medication will be massaged into place by a female attendant and not by Dr. Katzell. There have been no complaints in the three years since Dr. Katzell has made these changes in his orthopedic practice.

75. Over twenty witnesses testified at the final hearing concerning Dr. Katzell's practice of medicine since the incidents involving the six female patients. The witnesses found that in their dealings with Dr. Katzell they found him to be a capable, professional and caring physician.

    
    

76. Dr. Katzell was interviewed, tested, and evaluated by two forensic psychologists, Theodore Blau, Ph.D. and Florence Kaslow, Ph.D. Based on their evaluations, it is their opinion that Dr. Katzell can safely practice medicine in the future and that Dr. Katzell's fear of loss of the ability to practice medicine in the future is so overwhelming that he will not be expected to exceed the boundaries of acceptable behavior that the law or ethics require of him as a physician.

    
    

77. The evidence did not establish that the six patients suffered any physical or severe permanent psychological harm.

    
    

78. On the advice of counsel, Dr. Katzell entered pleas of nolo contendere to battery on the six patients. When he did so it was his understanding that would not have any significant impact with regard with his license to practice medicine. In order to get the State Attorney to agree to a plea agreement, Dr. Katzell opted to forego the taking of any depositions in the criminal case.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

80. AHCA has the burden of proving each of the allegations in the Administrative Complaints by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

81. Disciplinary action with respect to a professional license is limited to the offenses and facts alleged in the Administrative Complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324 (Fla. 1st DCA 1985).

    
    

82. AHCA has alleged that Dr. Katzell violated Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, which provide:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

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

       * * *

       (j) Exercising influence within a patient- physician relationship for 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. The board shall give great weight to the provisions of s.

       766.102, when enforcing this paragraph. As used

       in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in

       excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in

       order to be disciplined pursuant to this paragraph.

       * * *

       (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

       
       

83. AHCA alleged that Dr. Katzell violated Section 458.329, Florida Statutes, and thus violated Section 458.331(1)(x). Section 458.29 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 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.

    
    

    Section 458.329, Florida Statutes, is closely related to Section 458.331(1)(j) and prohibits a physician from inducing or engaging or attempting to induce or engage a patient in sexual activity. Since the counts alleging violations of Sections 458.331(1)(j) and (x) involve essentially the same facts and conducts as they relate to the individual patients, they should not be viewed as providing separate grounds for disciplinary action.

    
    

84. Counts One through Six of the Administrative Complaint in DOAH Case No. 93-7124 allege that Dr. Katzell violated 458.331(1)(c), Florida Statutes by pleading nolo contendere to six counts of battery on his patients.

85. The crimes of battery on T.B., A.F., B.B., D.B., T.C., and S.M. were crimes which directly relates to Dr. Katzell's practice of medicine or the ability to practice medicine.

    
    

86. AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.331(1)(c), Florida Statutes by pleading nolo contendere to six counts of criminal battery in Palm Beach County, Florida, and being adjudicated guilty of those offenses which related to his practice of medicine on T.B., A.F., B.B., D.B., T.C., and S.M.

    
    

87. Count Seven of the Administrative Complaint in DOAH Case No. 93-7124 alleges that Dr. Katzell entered a plea of nolo contendere to a charge of criminal battery on Patient J.M. No evidence was presented relating to Count Seven; thus, AHCA has failed to establish by any evidence that Dr. Katzell violated Section 458.331(1)(c) as it related to Patient J.M.

    
    

88. Counts One and Two of the Administrative Complaint in DOAH Case No. 93-7122 allege that Dr. Katzell violated 458.331(1)(x), Florida Statutes by his violation of Section 458.329, Florida Statutes and Section 458.331(1)(j), Florida Statutes, in that he inappropriately touched patient T.B.'s breast and genitalia during the course of a medical examination and performed a range of motion test while the patient's genitalia was exposed. AHCA did not establish by clear and convincing evidence that the touching of the breast or that the exposing of the patient's genitalia constituted sexual activity which would be in violation of either statute alleged. AHCA did establish by clear and

    convincing evidence that the touching of T.B.'s genitalia from the vagina to the rectum was sexual misconduct as that term is defined in Section 458.329, Florida Statutes. The touching of the patient's most private, sexual part of her body during a medical examination when such touching was clearly outside the scope of the generally accepted examination of the patient constitutes sexual activity. Based on Dr. Katzell's comments to T.B. after she jumped to one side when he touched her, it is clear that the touching was not an accident but was intentional. AHCA did establish by clear and convincing evidence that Dr.

    Katzell violated Section 458.333(1)(x) by touching T.B.'s genitalia.

    
    

89. Count Three of the Administrative Complaint in DOAH Case No. 93-7122 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes, by touching T.B.'s breast and genitalia and by performing a range of motion test while T.B.'s genitalia was exposed. AHCA has failed to establish by clear and convincing evidence that the touching of T.B's breast was a violation of Section 458.331(1)(t). AHCA has established by clear and convincing evidence that the touching of T.B.'s vaginal area and the performance of the range of motion test while T.B.'s genitalia was exposed constituted 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 is therefore a violation of Section 458.331(1)(t).

    
    

90. Counts Four and Five of the Administrative Complaint in DOAH Case No. 93-7122 allege that Dr. Katzell violated Section 458.331(1)(j), Florida Statutes, and Section 458.331(1)(x) by violating Section 458.29, Florida Statutes by inappropriately touching A.F.'s breast and genitalia during the course of a medical examination. AHCA did not establish by clear and convincing evidence that the touching of A.F.'s breast was a violation of either Sections 458.331(1)(j) or (x). AHCA did establish by clear and convincing evidence that Dr. Katzell's touching of A.F.'s vaginal area was a violation of Section 458.29 and thus a violation of Section 458.331(x), Florida Statutes. The touching of the patient's sexual organ during an examination when such touching is outside

    the scope of generally accepted examination constitutes engaging the patient in sexual activity. The evidence established that the touching was intentional and not accidental. When Dr. Katzell touched her vaginal area and she told him that it did not hurt there, Dr. Katzell did not withdraw his hand but went back up across the same area.

    
    

91. Count Six of the Administrative Complaint in DOAH Case No. 93-7122 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes by touching A.F.'s breast and vaginal area during an examination. AHCA has failed to establish by clear and convincing evidence that the touching of A.F.'s breasts violated Section 458.331(1)(t). AHCA did establish that by touching A.F.'s vaginal area during an examination, Dr. Katzell did not 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 and therefore he violated Section 458.331(1)(t), Florida Statutes.

    
    

92. Counts Seven and Eight of the Administrative Complaint in DOAH Case No. 93-7122 alleges that Dr. Katzell violated Sections 458.331(1)(j), Florida Statutes, and Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in that Dr. Katzell performed a vaginal examination on B.B. during the course of a medical examination. AHCA has established by clear and convincing evidence that a vaginal examination under the circumstances was outside the scope of a generally accepted examination and that Dr. Katzell did perform a vaginal examination. For Dr. Katzell to insert his fingers in B.B.'s vagina when there was no medical reason to do so constituted engaging B.B. in sexual activity and was sexual misconduct. Thus, AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.331(1)(x), Florida Statutes.

    
    

93. Count Nine of the Administrative Complaint in DOAH Case No. 93-7122 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes by performing a vaginal examination on B.B. There was no medical necessity for performing a vaginal examination and therefore Dr. Katzell did not 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 when he performed a vaginal examination on B.B. AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes.

    
    

94. Counts One and Two of the Administrative Complaint in DOAH Case No. 93-7123 allege that Dr. Katzell violated Sections 458.331(1)(j), Florida Statutes, and Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, by touching D.B.'s vaginal area during a course of medical examinations. AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.331(x) by violating Section 458.329, Florida Statutes. On at least eight different occasions during a seven month period, Dr. Katzell touched D.B. in her vaginal area while examining her. There was no medical necessity for Dr. Katzell to touch D.B. in her vaginal area, down the middle of her crotch from top to bottom, while he was changing her dressing, performing a range of motion test, or measuring her leg. The touchings of D.B.'s private, sexual part of her body in a manner that was outside the scope of generally accepted examination constituted engaging D.B. in sexual activity and was sexual misconduct. Because of the number of times that the touchings occurred, it can only be concluded that the touchings were intentional and not accidental.

95. Count Three of the Administrative Complaint in DOAH Case No. 93-7123 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes by touching D.B.'s vaginal area. AHCA has established by clear and convincing evidence that by touching D.B. in her vaginal area Dr. Katzell failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and therefore violated Section 458.331(1)(t), Florida Statutes.

    
    

96. Counts Four and Five of the Administrative Complaint in DOAH Case No. 93-7123 allege that Dr. Katzell violated Sections 458.331(1)(j), Florida Statutes and Section 458.331(1)(x) by violating Section 458.329 by touching T.C. in her vaginal area during the course of a medical examination. There was no medical necessity for Dr. Katzell to touch T.C.'s vaginal area during his examination of T.C. on November 18, 1991. The touching of the patient's genitalia was beyond the scope of a generally accepted examination and constituted sexual misconduct. Having judged the credibility of the witnesses, and having considered that the inappropriate touching took place during a time period in which I find that Dr. Katzell was also engaging in inappropriate touching of other patients, I find that the touching was intentional and not accidental.

    
    

97. Count Six of the Administrative Complaint in DOAH Case No. 93-7123 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes, by touching T.C.'s vaginal area during his examination of T.C. There was no medical necessity for Dr. Katzell to touch T.C.'s vaginal area during his examination of her on November 18, 1991. By touching her vaginal area Dr. Katzell did not practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes.

    
    

98. Counts Seven and Eight of the Administrative Complaint in DOAH Case No. 93-7123 allege that Dr. Katzell violated Sections 458.331(1)(j), Florida Statutes, and Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, by touching S.M. in the vaginal area during a medical examination. There was no medical reason for Dr. Katzell to touch S.M. in her vaginal area during his examination. The touching was beyond the scope of a generally accepted examination and constituted sexual misconduct. Having judged the credibility of the witnesses, I find that the touching was intentional and not accidental. AHCA has established by clear and convincing evidence that Dr. Katzell violated Section 458.329 and thus, violated Section 458.331(1)(x), Florida Statutes.

    
    

99. Count Nine of the Administrative Complaint in DOAH Case No. 93-7123 alleges that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes by touching S.M. in her vaginal area during a medical examination. AHCA has established by clear and convincing evidence that by touching S.M.'s vaginal area that Dr. Katzell failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and thus established that Dr. Katzell violated Section 458.331(1)(t), Florida Statutes.

100. Rule 59R-8.001(2), Florida Administrative Code provides:

     
     

     The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for

     rehabilitation when appropriate; and to deter other applicants and licensees from violations.

     
     

101. Rule 59R-8.001(2), Florida Administrative Code, sets forth the range of penalties for specific violations. For a violation of Section 458.331(1)(c), Florida Statutes, the penalty ranges from probation to revocation or denial of the license and an administrative fine from $250 to $5,000. For a violation of Section 458.331(1)(j), Florida Statutes, the penalty range is from one year suspension to revocation or denial and an administrative fine from $250 to

     $5,000. The penalty range for a violation of Section 458.331(1)(t), Florida Statutes, is from two years probation to revocation or denial and an administrative fine from $250 to $5,000. For a violation of Section 458.331(1)(x), Florida Statutes, the penalty ranges from a reprimand to revocation or denial and an administrative fine from $250 to $5,000.

     
     

102. Rule 59R-8.001(3), Florida Administrative Code provides:

     
     

     1. Aggravating or Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above [in subsection (2)]. The

        Board shall consider as aggravating or mitigating factors the following:

        1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

        2. Legal status at the time of the offense: no restraints or legal constraints;

        3. The number of counts or separate offenses established;

        4. The number of times the same offense or offenses have been previously committed by the licensee or applicant;

        5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

        6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

        7. Any other relevant mitigating factors.

     
     

103. Dr. Katzell has violated the mutual trust upon which the physician- patient relationship is founded and such breach is a serious offense. However, Dr. Katzell has taken measures to ensure that the breach of trust does not occur in the future. There have been no complaints against Dr. Katzell during the last three years since he has changed his methods of office practice. It is the opinion of two psychologists that it is unlikely that such a breach of trust will occur in the future. Based on these mitigating factors, it not recommended that Dr. Katzell's license be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jeffrey L. Katzell,

M.D., violated Section 458.331(1)(c), Florida Statutes, in Counts 1, 2, 3, 4, 5, and 6 of the Administrative Complaint in DOAH Case No. 93-7124, dismissing Count 7 of the Administrative Complaint in DOAH Case No. 93-7124, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(t), Florida Statutes in Counts 3, 6, and 9 in the Administrative Complaint filed in DOAH Case No. 93- 7122 and in the Administrative Complaint filed in DOAH Case No. 93-7123, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7123, dismissing Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7123 as not providing a separate ground for disciplinary action given the findings that Dr. Katzell violated Section 458.329 and thus, Section 458.331(1)(x), Florida Statutes. It is recommended that the following penalty be imposed:

1. Suspension of the license of Dr. Katzell for six months;

   
   

2. Imposition of an administrative fine of $2,000 for each violation for a total of $36,000;

   
   

3. Five years probation following the suspension of the license;

   
   

4. All examinations of female patients by Dr. Katzell be made in the presence of a female chaperon, and this shall be a permanent requirement of his medical license; and

   
   

5. Dr. Katzell is to remain under a supervisory contract with the Physician Recovery Network until the conclusion of his probationary period.

DONE AND ENTERED this 19th day of May, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 19th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NOs.

93-7122, 93-7123, and 93-7124

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-10: Accepted in substance.

2. Paragraph 10 (there were two paragraphs numbered 10): Accepted in substance.

3. Paragraphs 11-24: Accepted in substance.

4. Paragraph 25: Rejected as not supported by clear and convincing evidence.

5. Paragraphs 26-27: Rejected as unnecessary because incidents related to the December 30 visit were not alleged in the Administrative Complaint.

6. Paragraph 28: Accepted in substance except that the undergarment that Dr. Katzell asked her to remove was her panties.

7. Paragraphs 29-37: Accepted in substance.

8. Paragraph 38: Accepted in substance except as to the date on which he began treatment for chronic knee derangement.

9. Paragraphs 39-54: Accepted in substance.

10. Paragraph 55: Rejected as irrelevant.

11. Paragraph 56: Rejected as not supported by clear and convincing evidence.

12. Paragraphs 57-65: Accepted in substance.

13. Paragraph 66: Accepted in substance except that in relation to the criminal information pertaining to A.F., Dr. Katzell entered a plea of nolo contendere to battery on the person of A.F. not T.B.

14. Paragraphs 67-70: Accepted in substance.

15. Paragraph 71: Rejected because the allegations were not part of the Administrative Complaint

16. Paragraphs 72-77: Accepted in substance.

17. Paragraphs 78: Rejected because the allegation was not part of the Administrative Complaint.

18. Paragraphs 79-81: Accepted in substance.

Respondent's Proposed Findings of Fact

1. Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary.

2. Paragraph 2: The first sentence and the first half of the second sentence are rejected as unnecessary. The remainder is accepted in substance.

3. Paragraph 3: Accepted in substance.

4. Paragraph 4: Rejected as unnecessary detail.

5. Paragraphs 5-7: Rejected as unnecessary detail.

6. Paragraphs 8-11: Rejected as subordinate to the findings that were actually made.

7. Paragraphs 12-15: Rejected as unnecessary detail.

8. Paragraph 16: Rejected to the extent that it implies that all of Dr. Katzell's actions were in compliance with the orthopedic standard of care. Accepted in substance to the extent that the medical records alone do not show the violations charged in the administrative complaints.

9. Paragraphs 17-18: Accepted in substance.

10. Paragraph 19: The first sentence is rejected to the extent that the patient indicated that she had fallen. She indicated that she caught herself from falling as she was walking down the stairs. The remainder is accepted in substance.

11. Paragraphs 20-24: Accepted in substance.

12. Paragraphs 25-26: Rejected as unnecessary.

13. Paragraphs 27-30: Accepted in substance.

14. Paragraphs 31-37: Rejected as unnecessary because the actions of Dr. Katzell during the December 30 visit were not alleged in the Administrative Complaint.

15. Paragraph 38-39: Accepted in substance.

16. Paragraph 40: Rejected as unnecessary detail.

17. Paragraphs 41-42: Accepted in substance.

18. Paragraphs 43-44: Rejected as unnecessary detail.

19. Paragraph 45: The first two sentences are rejected as unnecessary detail. The last sentence is accepted in substance.

20. Paragraphs 46-48: Accepted in substance.

21. Paragraph 49: The first sentence is rejected as constituting argument. The second sentence is rejected as unnecessary detail.

22. Paragraph 50: The portion of the sentence dealing with sexual activity is accepted in substance as it relates to the January 23 visit but the portion dealing with practice below the standard of care is rejected as not supported by the evidence.

23. Paragraphs 51-53: Accepted in substance.

24. Paragraph 54: Rejected as unnecessary detail.

25. Paragraph 55: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail.

26. Paragraphs 56-58: Accepted in substance.

27. Paragraph 59: Rejected as constituting argument.

28. Paragraph 60: Rejected as irrelevant. The inappropriate touching of the vagina is sexual activity and it is irrelevant whether they talked about sexual topics or whether either person was sexually aroused by it.

29. Paragraph 61: The first sentence is accepted in substance. The second sentence is rejected as constituting argument.

30. Paragraph 62: The first sentence is rejected as unnecessary. The second sentence is accepted in substance.

31. Paragraph 63: The first sentence is rejected as not supported by the evidence. Having judged the credibility of the witnesses, the second sentence is rejected.

32. Paragraphs 64-71: Accepted in substance.

33. Paragraph 72: Rejected as unnecessary.

34. Paragraph 73: The first sentence is accepted in substance. The second sentence is rejected as unnecessary detail.

35. Paragraphs 74-75: Rejected as subordinate to the facts found.

36. Paragraphs 76-78: Accepted in substance.

37. Paragraph 79: The first sentence is rejected as unnecessary. The second sentence is accepted in substance.

38. Paragraphs 80-85: Rejected as unnecessary because the Administrative Complaint does not contain allegations related to this portion of the October 9 visit.

39. Paragraphs 86-87: Accepted in substance.

40. Paragraph 88: Rejected as unnecessary detail.

41. Paragraph 89: Accepted in substance.

42. Paragraph 90: Rejected as unnecessary detail.

43. Paragraph 91: The first half of the sentence is rejected as unnecessary detail. The last half of the sentence is accepted in substance.

44. Paragraph 92: Rejected to the extent that it implies that Dr. Katzell did not touch A.F.'s clitoris and her vaginal area.

45. Paragraphs 93-95: Rejected as irrelevant because it was the touching of the clitoris and the vaginal area which was at issue not the palpating of inguinal crease or the touching of the pubic bone.

46. Paragraph 96: The first sentence is accepted in substance. The second sentence is rejected as irrelevant since the complained touching was not in close proximity but was in the vagina.

47. Paragraph 97: Rejected as irrelevant.

48. Paragraph 98: Rejected as constituting argument.

49. Paragraph 99: Accepted in substance.

50. Paragraph 100: Having judged the credibility of the witnesses, this paragraph is rejected.

51. Paragraph 101: Rejected as not supported by the evidence. If the clitoris is covered by the labia, it is uncovered when a person sticks his thumb in the vaginal crease and runs his thumb down the crease and back up again.

52. Paragraph 102: The first sentence is rejected as not supported by the evidence. The last sentence is rejected as irrelevant.

53. Paragraphs 103: Rejected as irrelevant.

54. Paragraph 104: Accepted in substance.

55. Paragraphs 105-107: Rejected as irrelevant.

56. Paragraph 108: Rejected as constituting argument.

57. Paragraph 109: Accepted in substance.

58. Paragraph 110: Rejected as not supported by the evidence.

59. Paragraphs 111-115: Accepted in substance.

60. Paragraphs 116-122: Rejected as unnecessary because the Administrative Complaint does not contain allegations concerning the touching of B.B.'s breasts.

61. Paragraphs 123-127: Accepted in substance.

62. Paragraphs 128: Rejected as unnecessary detail.

63. Paragraphs 129-131: Rejected as irrelevant since the finding is that a vaginal examination was performed.

64. Paragraph 132: Rejected as constituting argument and subordinate to the finding that Dr. Katzell did perform a vaginal examination.

65. Paragraph 133: Rejected as unnecessary detail.

66. Paragraph 134: Rejected as subordinate to the finding that he did perform a vaginal examination.

67. Paragraph 135: Rejected as irrelevant as to whether she felt that he was engaging in sexual activity.

68. Paragraph 136: Rejected as not supported by the greater weight of the evidence that the pressure that

B.B. felt was consistent with a rectal examination.

1. Paragraphs 137-138: Rejected as subordinate to the facts actually found. Dr. Koulisis's statement corroborated B.B.'s testimony that a vaginal examination was performed.

2. Paragraph 139: Rejecting as constituting argument.

3. Paragraph 140: Rejected as irrelevant.

4. Paragraph 141: Rejected as constituting argument.

5. Paragraph 142: Accepted in substance.

6. Paragraphs 143-144: Rejected as irrelevant. There was no showing that Dr. Katzell was prejudiced by the loss of the letter.

7. Paragraph 145: Accepted in substance.

8. Paragraph 146: The first and third sentences are accepted in substance. The remainder is rejected as unnecessary detail.

9. Paragraph 147: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary detail.

10. Paragraph 148: Rejected as unnecessary detail.

11. Paragraph 149: Accepted in substance.

12. Paragraph 150: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail.

13. Paragraphs 151-153: Rejected as constituting argument and subordinate to the facts actually found. Dr. Katzell did see D.B. in the hospital on at least one occasion and he did touch her in her vaginal area during that examination.

14. Paragraphs 154-155: Accepted in substance.

15. Paragraphs 156-157: Rejected as irrelevant. The inappropriate behavior was not touching near the crotch area but the touching of the crotch.

16. Paragraphs 158-159: Rejected as not supported by the evidence.

17. Paragraph 160: Rejected as irrelevant.

18. Paragraph 161: Rejected as subordinate to the finding that there was a touching.

19. Paragraphs 162-164: Accepted in substance.

20. Paragraphs 165-166: Rejected as irrelevant.

21. Paragraph 167: Rejected as it refers to the last visit, otherwise accepted in substance.

22. Paragraphs 168-172: Rejected as subordinate to the finding that there was a touching in the crotch area.

23. Paragraph 173-175: Accepted in substance.

24. Paragraph 176: Accepted.

25. Paragraphs 177-179: Rejected as subordinate to the facts actually found that there was a touching in the vaginal area.

26. Paragraph 180: Accepted in substance.

27. Paragraphs 181-182: Rejected as subordinate to the finding that there was a touching in the vaginal area.

28. Paragraph 183: Rejected as unnecessary.

29. Paragraph 184: The first sentence is rejected as unnecessary. The sentence is rejected as constituting argument and as not supported by the evidence. Both women indicated that D.B. did not go into specifics and the sister-in-law testified that D.B. did not like the way that he had examined her and touched her legs.

30. Paragraph 185: Rejected as not supported by the evidence. There was testimony that D.B. advised her husband.

31. Paragraph 186: Rejected as irrelevant.

32. Paragraphs 187-188: Rejected as subordinate to the finding that there were inappropriate touchings of the vagina.

33. Paragraph 189: Accepted in substance.

34. Paragraph 190: Having judged the credibility of the witnesses, it is rejected.

35. Paragraph 191: Rejected as not supported by the evidence.

36. Paragraphs 192-195: Accepted in substance.

37. Paragraphs 196-199: Rejected as unnecessary detail.

38. Paragraphs 200-203: Accepted in substance.

39. Paragraphs 204-205: Rejected as irrelevant.

40. Paragraphs 206: Accepted in substance.

41. Paragraph 207: Accepted that Dr. Katzell moved the underwear, but rejected as irrelevant as to whether he remembers exposing the vagina.

42. Paragraph 208: Accepted in substance.

43. Paragraph 209: Rejected as unnecessary detail.

44. Paragraph 210: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail.

45. Paragraphs 211-212: Rejected as unnecessary detail.

46. Paragraphs 213: Rejected as subordinate to the finding that he touched the vagina.

47. Paragraph 214-216: Rejected as subordinate to the fact that he touched the vagina.

48. Paragraph 217: Accepted in substance.

49. Paragraph 218: Rejected as not supported by the evidence.

50. Paragraphs 219-220: Accepted in substance.

51. Paragraphs 221-222: Rejected as unnecessary detail.

52. Paragraph 223: Accepted in substance.

53. Paragraph 224: The first sentence is rejected as unnecessary detail. The last sentence is accepted in substance.

54. Paragraph 225: Accepted in substance.

55. Paragraph 226-228: Rejected as unnecessary detail.

56. Paragraph 229-231: Accepted in substance.

57. Paragraphs 232: Rejected as irrelevant.

58. Paragraph 233: Rejected as subordinate to the finding that there was a touching of the vaginal area.

59. Paragraph 234: The first sentence is accepted in substance. The remainder is rejected as subordinate to the finding that there was a touching of the vaginal area.

60. Paragraphs 235-236: Rejected as subordinate to the finding that there was a touching of the vaginal area.

61. Paragraph 237: Accepted in substance.

62. Paragraph 238: Rejected as irrelevant.

63. Paragraph 239: Rejected to the extent that it implies that Dr. Katzell did not touch the vaginal area, but otherwise accepted in substance.

64. Paragraph 240: Accepted in substance to the extent that it refers to the actions described in Paragraph

    239 of Respondent's Findings of Fact.

65. Paragraph 241: Rejected as subordinate to the finding that Dr. Katzell touched S.M.'s vaginal area.

66. Paragraphs 242-245: Rejected as irrelevant.

67. Paragraph 246: Rejected as constituting argument.

68. Paragraphs 247: Accepted in substance.

69. Paragraph 248: Rejected as constituting argument.

70. Paragraph 249: Rejected as not supported by the evidence.

71. Paragraph 250: The first sentence is rejected as unnecessary. The second sentence is accepted in substance.

72. Paragraph 251: Accepted in substance.

73. Paragraph 252-257: Rejected as unnecessary detail.

74. Paragraph 258-261: Rejected to the extent it implies that the tests and evaluations indicate that Dr. Katzell did not commit the violations alleged in the Administrative Complaint.

75. Paragraph 262: The first two sentences are rejected as irrelevant. The third sentence is rejected as not supported by evidence that Dr. Katzell did not engage in sexual activity with the patients.

76. Paragraph 263: The first two sentences are rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. The last sentence is accepted in substance.

77. Paragraph 264: Rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints.

78. Paragraph 265: Accepted in substance.

79. Paragraph 266: Rejected as not supported by the evidence.

80. Paragraph 267: Rejected as constituting argument.

81. Paragraph 268: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail.

82. Paragraph 269: Accepted in substance.

83. Paragraphs 270-271: Rejected as irrelevant since there was sufficient evidence to establish that Dr. Katzell did commit a battery on each of the six patients. In the case of D.B., he did commit a battery on her on July 17, 1991 and out of the eleven counts of battery on D.B. for which Dr. Katzell was charged there was sufficient evidence to support a charge of battery on eight of the counts.

84. Paragraph 272-273: Rejected as irrelevant.

85. Paragraph 274-277: Accepted in substance.

86. Paragraph 278: Rejected as unnecessary.

87. Paragraph 279: Accepted in substance.

88. Paragraphs 280-282: Rejected as subordinate to the findings that committed the violations as set forth in the Findings of Fact of this Recommended Order.

89. Paragraphs 283-287: Accepted in substance.

90. Paragraph 288: The first sentence is accepted in substance. The second sentence is rejected as unnecessary.

91. Paragraph 289: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The third sentence is rejected as irrelevant.

92. Paragraph 290: Accepted to the extent that the evidence presented established that it is not likely that Dr. Katzell is not likely to commit in the future the type of actions alleged in the Administrative Complaint.

COPIES FURNISHED:

Albert Peacock, Esquire

Hugh R. Brown, Qualified Representative Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Mark A. Dresnick, Esquire Grand Bay Plaza

Suite 201

2665 South Bayshore Drive Miami, Florida 33133

Dr. Marm Harris Executive Director

Agency For Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Tom Wallace Assistant Director

Agency For Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION,

BOARD OF MEDICINE,

AHCA CASE NOS: 93-03966

Petitioner, 92-14422

92-03917

1. DOAH CASE NOS: 93-7124

   93-7123

   JEFFREY L. KATZELL, M.D., 93-7122

   LICENSE NO: ME 0050379

   Respondent.

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   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on August 4, 1995, in Palm Beach Gardens, Florida, for consideration of the Hearing Officer's Recommended Order, the Respondent's Exceptions and Motion to Stay Penalty, Petitioner's Response to Respondent's Motion and Exceptions, and Petitioner's Motion to Increase Penalty (Attached as App. A through C, respectively) in the case of Agency for Health Care Administration, Board of Medicine v. Jeffrey L. Katzell, M.D. Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was present and represented by Mark A. Dresnick, Esquire. Upon consideration of the Hearing Officer's Recommended Order 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 PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT

   
   

   1. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraph 12 of the Recommended Order that it was inappropriate to conduct a below the waist examination of patient T.B., is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence.

      
      

   2. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraphs 16 and 17 of the Recommended Order that it was inappropriate and sexual misconduct for the Respondent to make sweeping motions from the patient T.B.'s vagina to her rectum, is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence.

      
      

   3. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraphs 29 and 30 of the Recommended Order that it was inappropriate and sexual misconduct for the Respondent to touch the vaginal area of patient A.F., is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence.

      
      

   4. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraphs 37 and 39 of the Recommended Order that it was inappropriate and sexual misconduct for the Respondent to perform a vaginal examination of patient

      B.B. for the stated reason of determining where to place a shot in her tailbone, is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to judge the credibility of witnesses and weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence or determine the credibility of witnesses.

      
      

   5. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraphs 44, 45, 47, 48, 49, 50, 51 and 53 of the Recommended Order that the Respondent's touching of the patient D.B. in the hospital and his office was inappropriate and sexual misconduct, is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to judge the credibility of witnesses and weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence or determine the credibility of witnesses.

      
      

   6. Petitioner's Exception to the Hearing Officer's Finding of Fact in paragraphs 61 and 62 of the Recommended Order that the Respondent's touching of the patient T.C.'S vaginal area during a knee examination was inappropriate and sexual misconduct, is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to judge the credibility of witnesses and weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence or determine the credibility of witnesses.

   7. Petitioner'S Exception to the Hearing Officer's Finding of Fact in paragraphs 68 and 69 of the Recommended Order that the Respondent's touching and rubbing of the patient S.M.'s vaginal area during a examination was a deviation of the standard of care and sexual misconduct, is rejected. There was competent substantial evidence to support this finding. For reasons stated in the Petitioner's Response, this exception refers to a matter within the discretion of the hearing officer to judge the credibility of witnesses and weight conflicting evidence and it is not a matter for the Board to re-weigh that evidence or determine the credibility of witnesses.

      
      

   8. Respondent's argument in paragraph 2 of the Exceptions that the Respondent is not required to have a chaperon under Florida law, to the extent that it is offered as an exception, is rejected. For reasons stated in the Petitioner's Response, the Respondent was not alleged to have violated any provision of the Medical Practice Act by not having a chaperon present during the examination and treatment of the patients.

      
      

   9. Petitioner's argument in paragraph 4 of the Exceptions that the Hearing Officer erroneously refused to consider questions regarding psychological history or prior complaints of the patients, is rejected. For reasons stated in the Petitioner's Response, such evidence proffered by the Respondent was not relevant, and it was proper for the Hearing Officer ;to refuse to consider it.

FINDINGS OF FACT

1. 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.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

   
   

   RULINGS ON RESPONDENT'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

   
   

3. Respondent's Exception to the Hearing Officer's Conclusions of Law in paragraphs 84-99, that it was error to find the Respondent in violation of three provisions of the Medical Practice Act: practicing below an acceptable standard of care, sexual misconduct and conviction of a crime related to the practice of medicine, because the violations arose out of one underlying set of facts, is rejected. For reasons stated in the Petitioner's Response, these violations have separate and distinct elements and a single act may cause more than a single consequence and therefore more than a single offense.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

5. The following Counts of the Administrative Complaints are dismissed: Count 7 of the Administrative Complaint in DOAH Case 93-7124, Counts 1, 4 and 7 in DOAH Case 93-7122, and Counts 2, 5 and 8 of the Administrative Complaint in DOAH Case 93-7123. The findings of fact set forth above do establish that Respondent has violated Section 458.331(1)((c),(t) and (x), Florida Statutes as charged in the remaining counts of the Administrative Complaints.

   
   

6. The Conclusions of Law of the Recommended Order are approved and adopted and incorporated herein.

   RULINGS ON RESPONDENT'S MOTION TO STAY PENALTY OF SUSPENSION

   
   

7. For reasons stated in the Petitioner's Response to the Respondent's Motion to Stay the Penalty of Suspension, the Motion is denied.

   
   

   RULING ON RESPONDENT'S MOTION TO INCREASE RECOMMENDED PENALTY OF THE HEARING OFFICER

   
   

8. The Board, having evaluated the mitigation and aggravation evidence and argument offered by the parties, denies Petitioner's Motion to Increase the Recommended Penalty of the Hearing Officer.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

1. That the Respondent is guilty of violating Sections 458.331(1)(c), (t) and (x), Florida Statutes as charged in the Administrative Complaints, with the following Counts of the Administrative Complaints dismissed: Count 7 of the Administrative Complaint in DOAH Case 93-7124, Counts 1, 4 and 7 in DOAH Case

1. 7122, and Counts 2, 5 and 8 of the Administrative Complaint in DOAH Case 93-

   7123.

   
   

   In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

   
   

   WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Sections 458.331(1)(c), (t) and (x) of the Administrative Complaints and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:

   
   

   1. Within thirty (30) days of the filing of the Final Order in this cause, the Respondent shall pay an administrative fine in the amount of thirty-six thousand dollars ($36,000).

      
      

   2. Upon the filing of the Final Order in this cause, Respondent's license to practice medicine in the State of Florida shall be suspended for a period of six (6) months.

      
      

   3. Upon reinstatement, Respondent's license to practice medicine in the State of Florida shall be placed on five (5) years probation.

      
      

   4. During the five (5) years of probation, Respondent shall participate and comply with the Physicians' Recovery Network.

      
      

   5. Upon the filing of the Final Order in this cause, Respondent's license to practice medicine in the State of Florida shall be permanently restricted to examining female patients only in the presence of a female chaperon.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

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 13th DAY OF September, 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 Jeffrey L. Katzell, M.D., 130 J.F. Kennedy Circle, #201, Lake Worth, Florida 33462-1190, Mark A. Dresnick, Esquire, 2665 South Bayshore Drive, Suite 201, Miami, Florida 33133, Susan B. Kirkland, Hearing Officer, 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 13th day of September, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 93-007122

Orders for Case No: 93-007122