STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6032

) STEPHEN WARD WELDEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in this case on July 21, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Grover Freeman, Esquire

201 East Kennedy, Suite 500 Tampa, Florida 33602-5829

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 10, 1992, the Petitioner alleges that the Respondent violated Section 458.329 and Section 458.331(1)(j) and (x), Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. The Respondent requested a formal administrative hearing. The matter was filed with the Division of Administrative Hearings on October 26, 1994, which scheduled and noticed the proceeding.

On March 14, 1995, the Petitioner filed a motion to Amend the Administrative Complaint by dismissing Count One of the original complaint. Count One sets forth the alleged violation of Section 458.331(1)(j), Florida Statutes. Without objection, the motion was granted on March 27, 1995.

At the hearing, the Petitioner presented the testimony of two witnesses and had exhibits numbered 2 and 4 admitted into evidence. The Respondent offered

the testimony of two witnesses, testified on his own behalf, and had exhibits numbered 1-5 admitted into evidence. The Prehearing Stipulation filed by the parties has been adopted as a Hearing Officer's exhibit.

A hearing transcript was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

The Petitioner has filed a Motion to Strike the Respondent's proposed order as being untimely filed. Upon review of the motion and the response filed by the Respondent, the motion is hereby denied.

FINDINGS OF FACT

1. The Petitioner is the state agency charged by statute with regulating the practice of medicine in the State of Florida.

   
   

2. At all times material to this case, the Respondent has been a licensed physician in the State of Florida, license #ME 0035994.

   
   

3. In August, 1987, the Respondent met with a married couple for treatment of the wife's (patient) recurrent ovarian cysts and pain. The couple were referred to the Respondent for the consultation by another physician. The patient was hospitalized at the time of the consultation.

   
   

4. As part of the initial examination of the couple, the Respondent conducted a routine infertility physical and history, including questions related to sexual history and practices.

   
   

5. During the examination, the Respondent learned that the couple's sexual activity was infrequent and that the marriage was troubled.

   
   

6. The Respondent determined that the cause of the medical problem was related to a fertility medication prescribed by another physician.

   
   

7. At that time, and on subsequent occasions, the Respondent advised the couple to obtain marital and sexual counseling.

   
   

8. The Respondent did not provide marital or sexual counseling to the couple.

   
   

9. After the patient recovered from the ovarian cysts, she consulted with the Respondent in regards to her ongoing fertility and ovulatory problems.

   
   

10. The Respondent began administering fertility medication to induce ovulation. The medical treatment was eventually successful and the patient became pregnant. The child was born in 1989.

    
    

11. At some point during the fertility treatment, the patient complained to the Respondent of experiencing migraine headaches. The Respondent referred the patient to a neurologist who prescribed narcotic pain relievers.

    
    

12. After the birth of the first child, the patient returned to the Respondent for further fertility treatment (apparently in late 1989 or early 1990) in order to conceive a second child. Again, the treatment was successful and the patient became pregnant.

13. The Respondent referred the pregnant patient back to her obstetrician by letter dated April 23, 1990.

    
    

14. Beginning in mid-1990, the patient and her husband began to engage in social activities with the Respondent. On occasion, the three had dinner, went swimming with their children, and went to view a fireworks show.

    
    

15. The patient had been employed as a pharmaceutical representative, but was interested in changing careers. She expressed an interest to the Respondent in establishing a medical transcription business. The Respondent provided typing work to the patient.

    
    

16. By April 23, 1990, the patient was typing letters for the Respondent. The letter from the Respondent to the obstetrician closes, "[p]lease forgive the typographical errors, as I am sure [patient] will be typing this letter."

    
    

17. The patient gave birth to the second child on October 26, 1990.

    
    

18. After the birth of the second child, the Respondent employed the patient as a medical transcriptionist. She also worked for her obstetrician as a transcriptionist.

    
    

19. Based on the suggestion in 1990 by the patient, the Respondent began to employ the patient's husband as a certified public accountant.

    
    

20. Throughout the remainder of 1990, the Respondent continued to socialize with the couple. The Respondent was aware that the couple's marriage was troubled.

    
    

21. The continuing marital problems of the couple eventually resulted in separation when the patient's husband moved from their home into an apartment. The evidence fails to conclusively establish the date of the separation, but it apparently occurred prior to April, 1991.

    
    

22. By April 1991, the patient and the Respondent continued to meet on a social basis. The Respondent was divorced. The patient and her husband remained separated. At times, the Respondent and the patient discussed their marital experiences.

    
    

23. During this period, the Respondent and the patient expressed romantic feelings for each other. They began to "date," and the Respondent paid to take the patient to dinners and movies.

    
    

24. In April or May of 1991, and continuing thereafter for a period of approximately three and a half years, the patient and the Respondent engaged in consensual sexual activity.

    
    

25. It is critical for an obstetrician-gynecologist, as well as for a specialist in reproductive endocrinology, to understand and respect the sexual boundaries between physician and patient.

    
    

26. The sexual boundary between a patient and a reproductive endocrinologist must be absolute. In order to receive appropriate medical treatment, the patient is requested to reveal intimate details of her sexual activities and the emotional nature of a marriage. The patient must be able to completely trust the physician. The information is and must remain confidential.

27. From the time of the Respondent's initial examination and history of the patient, through the initiation of the sexual relationship, the Respondent was aware of the marital and sexual problems of the patient and her husband.

    
    

28. The Respondent asserts that by the time the sexual relationship began, the physician-patient relationship had been terminated by the letter of April 23, 1990.

    
    

29. Based on credited expert testimony, the evidence establishes that the physician-patient relationship continued to exist at the time the sexual activity began.

    
    

30. The evidence establishes that the referral of a pregnant patient back to an obstetrician does not terminate the relationship with a fertility specialist, who may again be called upon to render assistance in treatment of continuing fertility problems.

    
    

31. The evidence also establishes that prescribing of narcotics necessarily establishes a physician-patient relationship.

    
    

32. Subsequent to the letter of April 23, 1990, the Respondent wrote prescriptions to refill narcotic pain medications which the patient had obtained from her neurologist.

    
    

33. Although documentary evidence regarding the actual prescriptions is deemed to lack reliability, both the Respondent and the patient acknowledged that the prescriptions were written.

    
    

34. The Respondent wrote the refills after the patient, with continuing migraine headaches, complained that she would have to see the prescribing physician and pay for an office visit to get them refilled.

    
    

35. Although the Respondent claims to have reviewed an early report done by the neurologist to whom he had referred the patient, there is no evidence that the Respondent did a physical examination at the time he wrote the refill prescription.

    
    

36. The evidence establishes that, because a physician can prescribe narcotics, there is potential for abuse by a physician who may attempt to trade drug prescriptions for sexual activity.

    
    

37. It is unethical for a physician to induce a patient into sexual activity. Allowing an emotional relationship to begin and develop within the physician-patient relationship constitutes an inducement of the patient into sexual activity.

    
    

38. The Respondent failed to maintain sexual boundaries with his patient. He allowed and encouraged an emotional and sexual relationship to develop, and as such, used the physician-patient relationship to engage and induce the patient into sexual activity.

    
    

    CONCLUSIONS OF LAW

    
    

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

40. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The burden has been met.

    
    

41. In relevant part, Section 458.331(1), Florida Statutes, provides as follows:

    
    

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

    * * *

    (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 ordered subpoena of the department.

42. Section 458.329, Florida Statutes, provides as follows: Sexual misconduct in the practice of medicine.--

    The physician patient relationship is founded on

    mutual trust. Sexual misconduct in the practice of medicine means violation of the physician- patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited.

    
    

43. In this case, the evidence establishes that because the patient consulted the Respondent about fertility problems, the Respondent had detailed knowledge of the patient's sexual history and continuing marital difficulties. The Respondent allowed and encouraged the development of a personal relationship which resulted in intimate sexual activity between the Respondent and his patient after her marriage foundered.

    
    

44. The Respondent asserts that by the time the sexual activity began, he was no longer the patient's physician. The evidence establishes that the physician-patient relationship continued to exist.

    
    

45. The Respondent asserts that because the sexual activity with the patient was consensual, he can not be said to have "induced" the relationship. The evidence establishes that allowing an emotional relationship to begin and develop within the physician-patient relationship constitutes an inducement of the patient into sexual activity.

    
    

46. Rule 59R-8, Florida Administrative Code, sets forth the disciplinary guidelines of the Board of Medicine applicable to violations of Section 458.331, Florida Statutes. In relevant part, Rule 59R-8.001, Florida Administrative Code, provides as follows:

    1. Purpose. Pursuant to Section 2, Chapter

       86-90, Laws of Florida, the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F. S. The purpose

       of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the board finds it necessary to deviate from the guidelines fro the stated reasons given within this rule. The range of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. 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 or licensees from violations.

       
       

47. Penalties for violation of disciplinary statutes are established by guidelines set forth at Rule 59R-8.001(2), Florida Administrative Code. The penalty for violation of Section 458.331(1)(x) ranges from a reprimand and probation to revocation, and an administrative fine up to $5,000.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Agency for Health Care Administration enter a Final Order determining that Stephen Ward Weldon has violated Sections 458.329 and 458.331(1)(x), Florida Statutes, reprimanding the Respondent and placing the Respondent on probation for a period of two years.

DONE and RECOMMENDED this 28th day of September, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 28th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6032

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

6. Rejected, unnecessary.

19-20. Rejected, not established by clear and convincing evidence.

22. Rejected, cumulative.

29. Rejected, cumulative.

Respondent

The Respondent's proposed findings of fact frequently refer to an alleged termination of the physician-patient relationship. Such references are rejected as contrary to the greater weight of credible and persuasive evidence.

Otherwise, the proposed findings are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected. The prehearing stipulation filed by the parties does not address certification.

9. Rejected as to patient's desire for her marriage to continue, and as to the assertion that her marital difficulty was "unrelated" to the eventual development of her relationship with the Respondent, irrelevant.

1. Rejected, irrelevant.

2. Rejected, recitation of testimony is not a finding of fact.

16-17. Rejected, recitation of testimony is not a finding of fact. 18-20. Rejected, irrelevant.

DOAH CASE NO 94-6032

COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Harold D. Lewis, Esquire

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303-4131

Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Grover Freeman, Esquire

201 East Kennedy, Suite 500 Tampa, Florida 33602-5829

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 94-006032

Orders for Case No: 94-006032