STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 94-3609

)

LEON DOYAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on May 31, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Kenneth J. Metzger

Senior Attorney

Agency for Health Care Administration/Board of Medicine 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance.

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on March 23, 1994, when the Department of Business and Professional Regulation (now the Agency for Health Care Administration), Board of Medicine (hereinafter referred to as the Department), filed an administrative complaint against the Respondent, Leon Doyan, M.D. The complaint alleged Respondent had violated various provisions of Section 458.331(1), Florida Statutes, in the treatment of three named patients. Subsequently, the Department withdrew the alleged violations as to one patient but went forward on the remaining allegations.

More specifically, the administrative complaint alleged Respondent had committed gross or repeated malpractice or had failed 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; had failed to keep written medical records justifying the course of treatment of the patient; had exercised influence within the patient-

physician relationship for the purpose of engaging a patient in sexual activity; and had attempted to engage in sexual activity outside the scope of examination and treatment of a patient.

The Respondent denied the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The Department forwarded the matter to the Division of Administrative Hearings for formal proceedings on July 5, 1994.

The case was originally scheduled for hearing for February, 1995; however, due to discovery issues, the matter was continued and rescheduled. Respondent participated in and represented himself during a conference call conducted with the parties on February 20, 1995. By order entered February 21, 1995, Respondent was encouraged to seek the advice of an attorney in connection with this case. To date, no attorney has entered an appearance on behalf of Respondent.

On May 19, 1995, the Petitioner filed a motion to take official recognition which has been granted. The provisions of Chapters 20, 455, and 458, Florida Statutes, cited in the motion have been considered in preparation of this order.

At the hearing, the Petitioner presented the testimony of the following witnesses: John K. Jorgensen, an investigator employed by the Department; V.A., a former patient of the Respondent; P.T., a former patient of the Respondent; and Joel Mattison, M.D., accepted as an expert in plastic and reconstructive surgery. The Department's exhibits numbered 1 through 10 were admitted into evidence.

The Respondent did not appear at the hearing, and no testimony or other evidence was offered in his behalf. Respondent has submitted no explanation as to his failure to appear.

The transcript of the proceedings was filed with the Division of Administrative Hearings on June 21, 1995. Petitioner's proposed recommended order has been considered and specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of regulating the practice of medicine in the State of Florida.

   
   

2. Respondent holds an active license to practice medicine, license number ME 0030238 (Physician).

   
   

3. Respondent's practice is limited to what he has described as "cosmetic" surgery, but which is considered plastic or reconstructive surgery. Typically, Respondent performs elective surgery for cosmetic purposes to breasts, abdomen, buttocks, face (eyes, lips, cheeks), or hips.

   
   

4. In August, 1990, the patient, V.A., presented to the Respondent for a pre-operative consultation and examination.

   
   

5. At the time, V.A. was interested in having liposuction, breast enlargement, and an abdominoplasty.

6. Due to her medical history, V.A. was an extremely poor candidate for an abdominoplasty.

   
   

7. The pre-operative history and physical examination performed by Respondent as reflected in the records maintained by Respondent for the patient, V.A., were inadequate. No records supporting a complete physical examination and history have been provided.

   
   

8. The pre-operative medical records maintained for the patient, V.A., do not support the course of treatment proposed for the procedures to be performed.

   
   

9. Respondent did not order a pre-operative lab work-up for the patient,

   V.A. Such lab order would normally consist of a complete blood count, a urinalysis, electrolytes, blood sugar, blood nitrogen test, and a mammogram or breast examination since the breasts were to be augmented.

   
   

10. Respondent relied on lab test results for V.A. which were approximately three months old. Respondent believes that the reliance on tests up to six months old would be acceptable since he only performs surgery on healthy patients.

    
    

11. Respondent performed no independent examination of V.A. to verify she was "healthy," prior to surgery.

    
    

12. Failing to obtain current lab tests of the types described above before performing elective surgery of the nature sought by V.A. constitutes the practice of medicine below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions.

    
    

13. On or about August 30, 1990, Respondent performed the following procedures on V.A.: liposuction; breast enlargement; and an abdominoplasty.

    
    

14. In order to perform the procedures noted, Respondent used general anesthesia so that V.A. was under anesthesia for six hours.

    
    

15. During that time, Respondent opened V.A.'s abdomen, removed tissue, removed adipose tissue from various parts of the patient's body, injected fat tissue into the patient's breasts, cheeks and hands, and closed the abdominal wound with stitches.

    
    

16. The surgical or operative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe the procedures performed.

    
    

17. The Respondent was released to go home approximately two hours after the surgery. The postoperative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe how the patient was able to be discharged in so short a time after surgery.

    
    

18. V.A. returned to Respondent's office numerous times following the surgery. V.A. sustained an infection and complications from the wound to her abdomen that took months to heal.

    
    

19. Respondent treated the infection by scraping the wound and attempting to re-stitch it on at least two occasions.

20. V.A. sustained necrosis which is the death of tissue and which complicated the healing of the abdomen wound. The loss of skin from necrosis is much more likely to occur when the patient has scarring. Given V.A.'s medical history (scarring throughout the areas), the necrosis was almost inevitable.

    
    

21. Two procedures are available under the circumstances applicable to V.A.: allowing the wound to heal without stitches or to use a skin graft.

    
    

22. The procedure used by Respondent (stitching the infected area) fell below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions.

    
    

23. Injecting fat tissue for breast augmentation is inappropriate. Since it is common for the fat tissue to die after injection, the injected tissue then appears on a mammograph as a mass of suspicious origin. That is, it is difficult to differentiate from a breast mass that is a medical problem from that of the dead fat tissue. As a result, biopsies may be required to verify the mass content. In fact, V.A. has already had to have such a procedure following the augmentation performed by Respondent.

    
    

24. Respondent also conducted a pre-operative interview with a patient,

P.T.

1. P.T. was a radio talk show host at the time and suggested that the

   station, she and Respondent could all benefit from a campaign wherein she would have liposuction, the Respondent would receive her endorsement through advertising, and the station would have advertising paid for by the Respondent's clinic.

   
   

2. In an attempt to negotiate the terms of the advertising campaign, P.T., an advertising executive with the radio station, Respondent's office manager, and Respondent met together to discuss the project.

   
   

3. Respondent wanted a multifaceted campaign requiring P.T. to undergo more than just the liposuction she sought. Respondent's scope for the campaign included many of the surgeries his clinic offered.

   
   

4. While discussions continued for the advertising campaign terms, P.T. underwent pre-operative testing which included a blood test, medical history forms, and photographs.

   
   

5. During an office consultation in anticipation of surgery, Respondent requested that P.T. allow him to examine her.

   
   

6. Unlike a previous examination which had occurred without incident with someone in the room, Respondent closed and locked his office door and requested that P.T., who was alone with Respondent, stand near his desk.

   
   

7. When she complied, he leaned forward and raised her dress over her breasts. Next he unhooked her bra and pulled it over her breasts. Respondent proceeded to poke and prod P.T. across her breasts and abdomen during which time

   P.T. presumed it was for medical purposes.

   
   

8. P.T. became uncomfortable when the prodding which continued became more like a caress. She attempted to presume Respondent was merely checking the texture of her skin but became increasingly uncomfortable with his touch.

9. P.T.'s discomfort accelerated when she realized Respondent had placed his face in her vaginal area and was licking her. She immediately attempted to pull away. Respondent grabbed her on the breast and, as P.T. put it, "in the crotch."

   
   

10. P.T. struggled with Respondent who made several sexually inappropriate comments to her.

    
    

11. As P.T. attempted to regain her composure and close her clothes, the Respondent's office manager knocked on the door. On hearing the office manager, Respondent released P.T. and went to unlock the door.

    
    

12. At the time of the foregoing incident, P.T. was the Respondent's patient.

    
    

13. Respondent did not maintain appropriate medical records for the course of treatment proposed for the patient, P.T.

    
    

14. Respondent's course of conduct with the patient, P.T., fell below the standard of care a reasonably prudent physician would pursue for treatment of this patient.

    
    

15. Respondent attempted to engage a patient in a sexual activity.

    
    

16. P.T. did not consent to the activity described above.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Petitioner bears the burden of proof to establish by clear and convincing evidence that the Respondent committed the violations alleged in the administrative complaint. It has met that burden.

    
    

19. Section 458.331, Florida Statutes, provides, in part:

    
    

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

       * * *

       (j) Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. A patient shall

       be presumed to be incapable of giving free, full, and informed consent to sexual activity with his physician.

       * * *

       (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

       * * *

       (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.

       
       

20. In this case, the Petitioner has established the Respondent engaged in inappropriate sexual contact with the patient, P.T. The patient's account of the incident has been deemed credible and persuasive to conclude the Respondent touched the patient inappropriately, spoke to her in a sexually inappropriate manner, and did so without her consent or approval. Clearly, the examination undertaken by Respondent for this patient was not for medical purposes. Consequently, Respondent is guilty of exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity.

    
    

21. Petitioner has also established that the Respondent failed to maintain appropriate medical records for the patients, P.T. and V.A. With regard to V.A., it is undisputed that the records do not support the treatment undertaken for the patient (inadequate history and pre-operative testing), do not support the short time V.A. remained in the clinic after six hours of anesthesia, and do not support the course of postoperative treatment given the postoperative complications.

    
    

22. As to patient P.T., Respondent failed to maintain records supporting the pre-operative testing and consultation completed with the patient. In any event, records could not support the course of treatment pursued by Respondent. Consequently, Respondent is guilty of failing to keep written medical records justifying the course of treatment for these patients.

    
    

23. Finally, as to patient V.A., Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This patient was a poor candidate for abdominal cosmetic surgery. The Respondent failed to recognize this pitfall which ultimately caused V.A. much pain and anguish. V.A. has an enormous scar as a result of the Respondent's inappropriate attempt to close the infected wound with stitches. Under the conditions and circumstances of this case, Respondent failed to practice medicine and treat V.A. in accordance with the appropriate standard.

    
    

24. Rule 59R-8.001(2), Florida Administrative Code, sets forth the penalty guidelines for violations of Section 458.331, Florida Statutes. Such rule has been considered in the recommendation set forth below.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Agency for Health Care Administration, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(j), (m), and (t), Florida Statutes, and imposing the following penalties in accordance with the guidelines set forth by rule: revocation of the license together with an administrative fine in the amount of $15,000.00.

DONE AND ORDERED this 16th day of August, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3609

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 56 are accepted as accurate as to the facts but not necessarily the form for findings of fact. Typically, findings of fact should not recite testimony.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted.

COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Kenneth J. Metzger Senior Attorney

Agency for Health Care Administration/Board of Medicine 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Leon Doyan, M.D.

2817 E. Oakland Park Boulevard Fort Lauderdale, Florida 33306

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-003609

Orders for Case No: 94-003609