STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7243

) BASAVARAJ SIDDALINGAPPA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on February 23, 24, and 27, 1995, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William Frederick Whitson, Esquire

Senior Attorney

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Lee Sims Kniskern, Esquire

2121 Ponce de Leon Boulevard, Suite 630 Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 0060427, based on violations of Sections 458.331(1)(j) Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity and Section 458.331(1)(x), Florida Statutes, by violating any provision of this Chapter, in that he violated Section 458.329, Florida Statutes, and Rule 59R-9.008, Florida Administrative Code, by committing sexual misconduct in the practice of medicine.

PRELIMINARY STATEMENT

Respondent's license to practice medicine was suspended by the Director of the Agency for Health Care Administration. This emergency suspension was ordered pursuant to Section 120.54(9) and 120.60(8), Florida Statutes on December 12, 1994. The Summary Suspension Order was served upon Respondent on December 14, 1994, effective immediately. Respondent ceased to practice medicine. Shortly after the summary suspension order was issued and served, the

Probable Cause Panel of the Florida Board of Medicine issued a two count Administrative Complaint in AHCA Case Numbers 94-13399, 94-13400, and 94-13401 restating the allegations contained in the summary suspension order.

Respondent denied the allegations and this matter was referred to the Division for an expedited formal hearing. This matter was referred to the undersigned on Janury 3, 1995 and the case was set for hearing. On January 18, 1995, Petitioner filed a Motion of Taking Video Deposition to Perpetuate Testimony of the Agency Expert, William P. Boyd, Jr., M.D. and a Motion in Limine to exclude the presentation of evidence, testimony and questions pertaining to prior sexual history of Patients A.A., T.S. and B.K. Following motions by both parties, this matter was continued to permit sufficient time to complete discovery and to schedule sufficient hearing time to complete the testimony in this matter.

On February 8, 1995, Petitioner filed a Motion to Take Official Recognition of Rule 59R-9, Florida Administrative Code, which motion was granted. On February 10, 1995, Petitioner filed a Motion of Similar Fact Witness which motion was amended on February 13, 1995, and which was granted prior to the hearing.

Prior to hearing testimony, five prehearing matters were considered and ruled on. At the hearing, Petitioner offered the testimony of thirteen witnesses, plus the perpetuated video-taped deposition and transcript of the Agency expert. Eight agency exhibits were offered and accepted into evidence, with Exhibit 7 being in two parts. Respondent offered the testimony of 28 witnesses at hearing, plus the video-taped deposition of one witness. Twenty- nine Respondent's exhibits were offered and admitted.

The transcript of the proceedings was filed with the Division of Administrative Hearings on March 24, 1995. Petitioner and Respondent filed proposed finding of fact and conclusions of law on April 3 and March 31, 1995 respectively. Each of the proposals has been given careful consideration and incorporated in this Order when support by clear and convincing evidence. My specific ruling on each party's proposal is ruled on in the Appendix attached hereto.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to statute.

   
   

2. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0060427.

   
   

3. At all times material, Respondent's last professional office was located at 201 Hilda Street, Suite 21, Kissimmee, Florida 32741.

   
   

4. The Respondent specializes in internal medicine but is not Board Certified. In 1992, Respondent moved down from Illinois; and in November, 1992, he took over the family practice of Dr. Eugene Spears. Most of Dr. Spears' patients continued to come to Respondent for medical treatment.

   
   

5. A proper breast exam requires that a nurse have the patient remove the patient's bra and the nurse drape the patient before the physician enters. The

   nurse remains in the room during the examination. The physician has the patient lie flat on her back. The physician then palpates every quadrant of the breast. The nipple requires minimal exam (with a check for normal appearance and texture) unless the patient has a complaint of discharge. The nipple is examined by squeezing it gently to determine if disease or pathology is present.

   
   

6. A special relationship exists between a patient and a physician. It is a relationship of trust. Physicians are allowed to do things to patients that other people would not have liberty to do. Physicians examine and require patients to expose areas that patients are not comfortable exposing to the public. It is of major importance for a physician not to violate the trust of the patient.

   
   

7. It was the custom and habit in Respondent's practice to have a female assistant present whenever the doctor was conducting a breast or pelvic examination of a patient.

   
   

8. Whenever Respondent conducted a scheduled breast exam, he followed the appropriate standard of care and documented it in the patient's chart.

   
   

9. The Respondent did not document a breast exam during the time period when witnesses testified that Respondent inappropriately touched their breasts.

   
   

10. It is the custom and habit in Respondent's practice that whenever the Respondent was in the examination room with a patient, staff were to knock and open the door and enter.

    
    

11. B.K., T.S., A.A. and K.R. each had prior breast and pelvic examinations by physicians and other health care professionals and had performed breast self-exams. They were familiar with the techniques and procedures a physician should follow in the exam room.

    
    

    Patient B.K.

    
    

12. Patient B.K., a sixty-eight year old female, a former patient of Dr. Spears, presented to Respondent several times in the fall of 1993.

    
    

13. One of the many visits B.K. had with Respondent was on October 4, 1993, at which time she had her hip checked after an x-ray was performed. The hip was found to be normal. B.K. received a vitamin B-12 shot.

    
    

14. On November 9, 1993, B.K. presented herself for a routine office visit.

    
    

15. B.K. testified that approximately October 4, 1993 she wanted a flu shot but could not receive it because she had something wrong with her throat.

    B.K. called the doctor's office and wanted Respondent to examine it. His office agreed that she could come in right away and she did. Respondent did a cursory exam of her throat and chest. Then, Respondent asked Patient B.K. how long it had been since she had a breast examination and/or a mammogram. B.K. told Respondent that it had been a little over a year. Respondent had B.K. lie back on the exam table. Respondent closed the door and it sounded to B.K. that Respondent locked the door. Without using a stethoscope, Respondent placed his hand inside B.K.'s blouse and bra. Respondent fondled and rubbed Patient B.K.'s breasts until the pain was unbearable for the patient. Respondent then placed his mouth on Patient B.K.'s nipple. B.K. terminated the exam and left the room, after saying something to the doctor. B.K. stated that the breast exam lasted

    fifteen minutes or more and the right breast was never touched. No one else was present in the exam room. As she was leaving Respondent's office, B.K. mentioned to a nurse that something was wrong.

    
    

16. On December 22, 1993 Respondent gave B.K. a prescription for Ativan. Approximately a week or two later, she contacted the office stating that the Ativan had fallen into the drain and needed a new prescription. Respondent refused to renew her prescription due to his concerns that B.K. was overmedicating.

    
    

17. On or about January 2, 1994, B.K. told her pastor, Richard Johnson, about the alleged incident. He recommended that she report it to the police. She did so immediately.

    
    

18. Shortly thereafter, on January 7, 1994, Officer Anne Simonson of the Kissimmee Police Department visited B.K. at her home and assisted her in filling out a sworn witness statement alleging that Respondent had fondled B.K.'s left breast for fifteen minutes on or about October 4, 1993. Approximately two weeks later, B.K. drafted another sworn statement in her own handwriting restating her first complaint.

    
    

19. B.K. stated that she told the Respondent at the time of the incident that he should have been a "masseuse."

    
    

20. B.K. was confused at the hearing about who she spoke with first about the incident. B.K. testified that her husband did not go to the Respondent's office on October 4, 1993 with her even though the evidence indicated otherwise.

    
    

21. B.K. stated that she continued to see Respondent after the alleged incident so her husband could have an "outing" and because his office was convenient and wheelchair accessible for her husband. However, B.K. proceeded to tell many people of the alleged breast fondling incident.

    
    

22. The testimony of B.K. is not credible or reliable because her testimony was confused, although the alleged conduct of Respondent is similar to that of the other witnesses. From other evidence, the incident B.K. alleges occurred on October 4, 1993 could not have happened on that date. In addition, her conduct following the incident was incongruent. Therefore, her testimony does not produce a firm belief or conviction and is not clear and convincing.

    
    

23. Patient B.K. did not know Patient A.A., Patient K.R., or Patient T.S. prior to the hearing.

    
    

    Patient T.S.

    
    

24. Patient T.S. came to Respondent for routine medical treatment at least four times between February and July, 1994.

    
    

25. On July 5, 1994, T.S., a twenty year old female, presented to Respondent's office with complaints of abdominal pain. This was a follow-up visit from June 27th when she displayed similar symptoms.

    
    

26. T.S. awakened late for her appointment with Respondent and hurried to his office dressed in the clothing she had slept in the night before. T.S. was wearing underwear, boxer shorts and a pullover flannel shirt without a bra.

27. Respondent had T.S. sit on the examination table. No one else was present in the room.

    
    

28. Respondent initially placed the stethoscope on T.S.'s back. Respondent then moved to the front and placed the stethoscope outside T.S.'s shirt. Respondent then placed the stethoscope underneath her shirt on the breast area.

    
    

29. Respondent placed the stethoscope on Patient's T.S.'s breast and on her nipples. Respondent placed the stethoscope underneath the breast. Respondent fondled Patient T.S.'s breast roughly; it was, in fact, almost aggressive. Respondent at one point released the stethoscope and fondled T.S.'s breasts.

    
    

30. The Respondent was not performing an appropriate breast exam and it was inappropriate to fondle the patient's breasts.

    
    

31. The Respondent had Patient T.S. lay back on the exam table with her legs elevated. Respondent went underneath Patient T.S.'s shirt and pulled at her nipples while touching her breasts.

    
    

32. It was inappropriate to pull on T.S.'s nipples.

    
    

33. T.S. never requested a breast exam from Respondent.

    
    

34. Respondent then palpated T.S.'s abdomen. While palpating her abdomen, Respondent put his hand underneath T.S.'s panties/underwear. One hand remained on her breast.

    
    

35. It was inappropriate for Respondent to have one hand on T.S.'s breast while examining the abdomen with the other hand.

    
    

36. Respondent touched areas inside T.S.'s thighs, her hip, lower abdomen, and the outside of her vagina. Respondent used his hand to feel the outer area of the vagina, then worked his hand until it entered T.S.'s vagina.

    
    

37. Respondent was not wearing gloves on either hand and did not wash his hands prior to the exam.

    
    

38. The entire exam took approximately half an hour.

    
    

39. It is inappropriate to go below the line of pubic hair in an abdominal examination. Based on the presenting complaints, there was no medical reason for Respondent to examine T.S.'s vaginal area.

    
    

40. When a nurse came to the door of the exam room and asked to get something from the room, Respondent stopped the door from opening and told the nurse that she could get it when he was done with the examination.

    
    

41. T.S. felt the contact had been sexual in nature.

    
    

42. The first person Patient T.S. told of the incident was her boyfriend, later that same night. T.S. then called her parents in the early morning hours of July 6, 1994. They advised her to report the incident to the police. T.S. then went immediately to the Kissimmee Police Station to report the incident.

    
    

43. Following the incident with Respondent, T.S. underwent counseling.

44. T.S. did make inconsistent statements to the police during her deposition and at the hearing regarding material issues and other collateral matters. It also appears that T.S. is ultra-sensitive to men's conduct toward her.

    
    

45. However, in regard to the material facts at issue in this case, T.S.'s testimony is credible.

    
    

46. No evidence was offered which would indicate that T.S. knew Patients A.A., K.R. or B.K. prior to the formal hearing.

    
    

    Patient A.A.

    
    

47. On June 10, 1994, Patient A.A., a twenty-two year old female, presented to the Respondent with complaints of a sore throat.

    
    

48. This was the one and only visit to Respondent by A.A.

    
    

49. The nurse recommended that Respondent look at A.A.'s sunburnt eyes also.

    
    

50. Respondent first looked down A.A.'s throat, up her nose and in her ears. Then Respondent checked her lungs and heart by listening to A.A.'s back with his stethoscope. He then palpated her anterior chest wall. Then he placed the stethoscope to her chest between her breast and bra.

    
    

51. Respondent manipulated the stethoscope to the bottom of A.A.'s breast, inside her bra, on both breasts. While doing so, Respondent asked A.A. if there was a history of breast lumps in her family. A.S. said no, but became concerned.

    
    

52. Respondent asked her to lie down. Respondent again listened to A.A.'s chest with the stethoscope under her shirt. He then moved his hand inside her bra, holding her breast in his hand and fondling it. Respondent then fondled A.A.'s nipple. He put the nipple between two fingers and rubbed and squeezed it.

    
    

53. A.A. realized that what the Respondent was doing was inappropriate and sat straight up.

    
    

54. Respondent stopped, then said "I'm sorry", walked over to a chair and wrote A.A. a prescription and gave it to her. A.A. left the room, went to the receptionist's desk and left the office.

    
    

55. Respondent did not investigate A.A.'s sore throat or discuss her sunburnt eyes.

    
    

56. There was not a nurse or other female in the room during the exam.

    
    

57. A.A. felt the contact was sexual.

    
    

58. There was no medically recognized diagnostic purposes for the touching or massaging A.A.'s breast or manipulation of the nipple by Respondent.

    
    

59. A.A. left Respondent's office, flagged down a police officer, then went immediately to the Kissimmee Police Department where she made a statement.

60. Following this incident, A.A. required counseling.

    
    

61. A.A. did not know Patients T.S., K.R., or B.K. prior to the hearing.

    
    

62. Although testimony was offered to show that the witness's reputation in the community for truth and veracity was poor, and that A.A. was in financial difficulties prior to the incident, A.A.'s testimony in regard to the material facts in issue in this case is credible.

    
    

    Patient K.R.

    
    

63. Patient K.R. was called as a similar fact witness by Petitioner. She saw Respondent eight to ten times over a one year period in 1993-94. She resided in the same community for many years and was employed at a resturant for nearly eleven years.

    
    

64. Patient K.R. presented to Respondent for a sore throat, some time in the early part of 1994.

    
    

65. While listening to K.R.'s chest, Respondent said he felt a lump in the patient's left breast.

    
    

66. Respondent then felt K.R.'s breasts without another female or nurse in the room.

    
    

67. Respondent had patient K.R. lie down to perform the breast exam.

    
    

68. The Respondent twisted K.R.'s nipples while feeling her breasts.

    
    

69. Respondent did not ask Patient K.R. to remove her bra during this exam.

    
    

70. At the end of the exam, Respondent told K.R. that no lump was present.

    
    

71. A proper breast exam requires that a female attendant be in the room, and that the patient be properly draped and positioned. It is inappropriate to pull or twist a patient's nipples during a proper breast exam.

    
    

72. Following the incident, K.R. contacted a friend who was a nurse who worked at the Florida Hospital in Kissimmee and told her she was uncomfortable with the exam. The friend made light of the incident and brushed it off. K.R. did not report the incident to anyone else.

    
    

73. Although K.R.'s testimony was confused as to the date the incident occurred, her recollection of the circumstances is credible.

    
    

74. Patient K.R. did not know Patients A.A., T.S. or B.K. prior to the hearing.

    
    

75. All experts who reviewed the medical records of patients T.S., A.A., and B.K. (including the Agency expert) agree that if you consider the records by and in themselves, there is no violation of the Medical Practice Act. However, the medical records do not reflect what actually occurred in Respondent's examination room. What actually occurred to each of the patients is evidenced only by their individual testimony. The experts agreed that if Respondent did touch the patients as testified to by the witnesses (Respondent's inappropriate

    touching of the breasts and, in one case, vaginal area) it would be below the standard of care and be sexual misconduct.

    
    

76. Respondent enjoys a good professional reputation in the medical community and is known to practice within the standard of care.

    
    

77. Numerous patients attest to Respondent's professionalism and concern for his patients.

    
    

    CONCLUSIONS OF LAW

    
    

78. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.

    
    

79. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for the following violations of Sections 458.331(l)(j) and (x), Florida Statutes:

    
    

    (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;

    (x) violating any provision of this chapter, a rule of the board of department, or a lawfully order of the board or department previously entered in a disciplinary hearing or failing

    to comply with a lawfully issued subpoena of the department.

    
    

80. Section 458.329, Florida Statutes, 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 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.

    
    

81. Rule 59R-9.008, Florida Administrative Code, relating to Sexual Misconduct provides:

    
    

    1. Sexual contact with a patient is sexual misconduct and is a violation of Sections 459.329 and 458.331(1)(j), Florida Statutes.

    2. For purposes of this rule, sexual mis- conduct between a physician and a patient includes, but is not limited to:

       1. Sexual behavior or involvement with a patient including verbal or physical behavior which

          1. may reasonably be interpreted as romantic involvement with a patient regardless of whether such involvement occurs in the professional setting or outside of it;

          2. may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or

          * * *

    3. Sexual behavior or involvement with a patient excludes verbal or physical behavior that is required for medically recognized diagnostic or treatment purposes when such behavior is performed in a manner that meets the standard of care appropriate to the diagnostic or treatment situation.

       * * *

       (9) Upon a finding that a physician has committed unprofessional conduct by engaging in sexual misconduct, the Board will impose such discipline as the Board deems necessary to protect the public. The sanctions available to the Board

       are set forth in Rule 59R-8.001, F.A.C., and include restriction or limitation of the physician's practice, revocation or suspension of the physician's license.

       * * *

       
       

82. Section 120.58, Florida Statutes (Supp. 1994) provides in pertinent part:

    
    

    1. In agency proceedings for a rule or order: (a)1. Irrelevant, immaterial, or unduly

       repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible,

       whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall

       be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient

       in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57.

       1. Notwithstanding subparagraph 1., similar fact evidence of other violations, wrongs, or

          acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmis- sible when the evidence is relevant solely to prove bad character or propensity. . . .

       2. Notwithstanding subparagraph 1., in a proceeding against a licensed professional or in a proceeding for licensure of an applicant for professional licensure which involves allegations of sexual misconduct:

          1. The testimony of the victim of the sexual misconduct need not be corroborated.

          2. Specific instances of prior consensual sexual activity between the victim of the sexual misconduct and any person other than the offender is inadmissible, unless:

             [conditions irrelevant here]

             * * *

          3. Reputation evidence relating to the prior sexual conduct of a victim of sexual misconduct is inadmissible.

       
       

83. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 458.331(1)(j) and (x), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); See Addington v. Texas, 441 U.S. 426 (1979).

    
    

84. Florida law defines the burden of clear and convincing evidence as that evidence and testimony which is more compelling and persuasive than competent and substantial. To carry this burden of clear and convincing evidence, the evidence and testimony must be precise, explicit, lacking in confusion, and producing a firm belief or conviction without hesitation to the matter in issue. Smith v. Dept. of HRS, 522 So.2d 956 (1st DCA 1988); Ferris, at 294.

    
    

85. Since it is undisputed that proper medical treatment required that Respondent touch these women near the breast area, and in one case near the pubic area, the agency must prove by clear and convincing evidence that the physician touched these patients inappropriately, meaning outside of the "scope of generally accepted examination or treatment of the patient", Section 458.329, Florida Statutes. The clear and convincing standard requires that the witnesses be so credible that the trier of fact does not hesitate to find that the witness' claim that during a justified physical examination, she was touched improperly. Ferris, at 294.

    
    

86. The patient's determination that the touching was inappropriate must be a reasonable interpretation by the patient that the conduct was sexual. Rule 59R-9.008(2)(a)(3), Florida Administrative Code. This Board Rule excludes a suspicious belief, fearful fantasies or an exaggerated account of events.

    
    

87. Petitioner has proven, clearly and convincingly, by the evidence and testimony, that Respondent violated Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient-physician relationship when Respondent violated the trust placed in him as their physician by Patients T.S., K.R., and A.A., but not as to Patient B.K.

    
    

88. Petitioner has proved, clearly and convincingly, by the evidence and testimony, that Respondent violated Section 458.331(1)(x), Florida Statutes, when he violated a provision of Chapter 458, Florida Statutes, specifically, Section 458.329, Florida Statutes, and Rule 59R-9.008, Florida Administrative

    Code. Respondent committed sexual misconduct in the practice of medicine. Respondent touched the breasts of Patients T.S., K.R., and A.A. when there was no medical or diagnostic reason to do so. Respondent also inappropriately touched the breasts and nipples of Patients T.S., K.R., and A.A. Respondent touched the vaginal area and penetrated the vagina of Patient T.S. when there was no medical or diagnostic reason to do so.

    
    

89. B.K.'s testimony is not credible. B.K. testified that when the Respondent fondled one of her breasts, she told him he should have been a masseuse. She then testified at deposition that although she and her husband had other physicians to render care to them, she continued to go to the Respondent so her husband could have an "outing" and because his office was convenient. After Respondent refused to renew a prescription for a controlled substance a week or ten days after giving B.K. the original prescription, she contact her pastor and the Kissimmee Police Department and swore out this complaint that he fondled her left breast for fifteen minutes. B.K. then proceeded to tell many people of the alleged breast fondling incident.

    
    

90. Respondent is guilty of exercising influence within the patient- physician relationship, practicing medicine below the standard-of-care, and committing sexual misconduct in the practice of medicine in regard to two of the patients. The Agency brought the testimony of three women who felt violated enough by the actions of the Respondent to report it to authorities. These women had had prior breast exams and pelvic exams by physicians and had performed breast self-exams. They knew the difference between a proper and an improper exam. They know the procedures and the techniques that the physician should follow. These women felt violated by Respondent's actions, resulting in two of the women seeking counseling. The other victim, offered as a similar fact witness, talked to a nurse/friend, who is a cardiovascular technologist, following Respondent's exam. She felt the exam was improper but did not want to go to the police. She was told Respondent had a good reputation in the medical community and did not think he would act improperly. Therefore, she took no further action.

    
    

91. Three credible women felt violated to the point that they independently took action to report the actions of Respondent. The Agency presented the testimony of the first persons to whom the victims told their story, and their testimony was credible.

    
    

92. All experts who reviewed the medical records of patients T.S., A.A., and B.K. (including the Agency expert) agree that if you consider the records by and in themselves, there is no violation of the Medical Practice Act. However, the medical records do not reflect what actually occurred in Respondent's examination room. What actually occurred to each of the patients is evidenced only by their individual testimony. The experts agreed that if Respondent did touch the patients as testified to by the witnesses (Respondent's inappropriate touching of the breasts and, in one case, vaginal area) it would be below the standard of care and be sexual misconduct. Respondent himself testified that it would have been inappropriate and below the standard-of-care and sexual misconduct to touch T.S. below the pubic area.

    
    

93. Respondent offered, but was unable to prove, several theories as to why these women brought cases against Respondent. A "conspiracy theory" fails because the women did not know each other prior to the hearing. A.A. did not know of B.K.'s prior complaint when she went to the Kissimmee Police Department on June 10, 1994. T.S. went to the Kissimmee Police Department at the urging of her boyfriend and parents, not because of any knowledge of any prior complaints.

    K.R. was led to believe by a nurse/friend that Respondent was respectable and had no complaints filed against him, she did not go to the Kissimmee Police Department.

    
    

94. The Respondent's theory that "all three women were desperate for money, all of them are desperate for attention, and all of them have hired lawyers" as a reason for filing complaints is not persuasive. Two of the women do have financial problems which existed both before and after the incidents. However, K.R. has been employed by the same restaurant for almost 11 years and no evidence was provided that she is in need of money. Two of the women have not talked to a lawyer nor considered consulting an attorney for a civil suit. There was no collective motive shown for these women to bring complaints against Respondent. There is no common thread that runs through the victim's background that would support Respondent's theory. What they have in common is the similar way Respondent assaulted each of the victims.

    
    

95. When these incidents occurred, only Respondent and the lone patient were in the examination room. What really happened is known only by the patient and Respondent. Therefore the credibility for truthfulness of each is of utmost important.

    
    

96. In her cross examination, Respondent's attorney suggested that statements made to the police by witnesses were different than their testimony at trial. The witnesses explained that it was traumatic to talk about the incident, and it was difficult to think with the police watching and waiting. They each and they felt constrained by time in writing their statements and this is understandable.

    
    

97. Patient K.R. could not remember the exact date the incident occurred with Respondent. The exact date is not as important as the fact that she remembered the incident with sufficient detail to make her testimony credible and reliable.

    
    

98. In spite of Respondent's many attempts to discredit the patients, each of them have consistently related the same set of facts from the first time they told someone of the incidents with the Respondent through their testimony at hearing.

    
    

99. The Respondent has made every effort to cast doubt on the testimony of two of the patients by eliciting testimony regarding prior consensual sexual activity with another person. This testimony has not been considered. Section 128.58(1)(a)3., Florida Statutes (Supp. 1994).

    
    

100. Respondent violated the trust placed in him by the female patients who testified at the hearing. A physician has ethical, moral, and legal responsibilities and obligations toward any patient he sees. The patient trusts the physician to honor those responsibilities and obligations. These patients had that trust breached by Respondent when he was alone with them in an examination room, and intimated that there may be a problem with their breasts or asked if there was a history of lumps in her family. Then they would not question his actions.

     
     

101. Respondent's actions were inappropriate because (1) there was no medical or diagnostic reason to do a breast exam since the patients presented with complaints that did not necessitate a breast exam, and (2) even if symptoms or conditions did exist for a breast exam, he did them inappropriately when he massaged the breast until it hurt and pinched or twisted the nipples on the

     breasts of the patients. Additionally he violated the trust of the physician- patient relationship when he took advantage of Patient T.S. by touching her vaginal area and actually penetrating her vagina when he was palpating her abdomen in an attempt to diagnose the cause of her stomach pain. Respondent created a concern which, by hinting he had found something in their breast, allowed him to continue. When Respondent performed a legitimate breast exam with a patient properly draped and with an attendant in the room, he recorded it in the patient's records. The witnesses who had had legitimate exams by Respondent testified the exams had been done appropriately and the exams were put in the patient's records. By comparing witnesses' testimony and the documented breast exams, a proper, legitimate breast exam was not performed on the dates when the Respondent assaulted the patients.

     
     

102. These violations of patients' trust are not isolated incidences. The witnesses who testified have similar factual basis. These incidences occurred between late 1993 and mid-1994.

     
     

103. In accordance with Rule 59R-9.008(3), Florida Administrative Code, the inappropriate touching of a patient by a physician that is not for medically recognized diagnostic or treatment purpose is below the standard of care and is sexual misconduct.

     
     

104. The disciplinary guidelines of the Board of Medicine for Physicians found in Rule 59R-8.001, Florida Administrative Code, provides a range of penalties for violations of Section 458, Florida Statutes. The Rule provides in part:

1. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and (2), Florida Statutes, the Board shall act in accordance with the following disciplinary guide- lines and shall impose a penalty within the

   range corresponding to the violations set forth below . . .

   (j) Exercising influence to engage patient in sex.

   (458.331(1)(j), F.S.)

   (j) From one (1) year suspension to revocation or denial, and an administrative fine from $250.00 to $5,000.00.

   (x) Violation of law, rule, order, or failure to comply with subpoena.

   (458.331(1)(x), F.S.)

   (x) From a reprimand to revocation or denial, and an administrative fine from $250.00 to $5,000.00.

   * * *

2. Aggravating and Mitigating Circumstances.

Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

(a) Exposure of patient or public to injury or potential injury, physical or otherwise . . .

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections

458.331(1)(j) and (x), Florida Statutes as to Patients T.S. and A.A. As discipline therefore, it is FURTHER RECOMMENDED:

1. Respondent's license be suspended for a period of one year, commencing December 12, 1994, with his reinstatement upon demonstration that he can practice with skill and safety and upon such conditions as the Board of Medicine shall deem just and proper.

   
   

2. Respondent pay an Administrative fine in the amount of $6,000.00.

   
   

3. Respondent be placed on probation for a period of three years.

DONE and ENTERED this 9th day of May, 1995, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 9th day of May, 1995.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8, 9 (in part), 10, 11,

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 (in part),

30, 3, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50,

51, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,

87, 88.

Rejected as subsumed or irrelevant and immaterial: paragraphs 7, 9 (in part), 17 (in part), 28, 29 (in part), 59, 61, 65.

Rejected as not proven by clear and convincing evidence: paragraphs 52, 53, 54, 55, 56, 57, 58, 60, 62, 63, 64, 66, 67.

Proposed findings of fact submitted by Respondent.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, (in part), 7, 8, (in

part), 9, 10 (in part), 12, 18 (in part), 19 (in part), 20 (in part), 21 (in

part), 22 (in part) 27 (in part), 31, 44 (in part), 46 (in part), 47 (in part),

48 (in part), 49 (in part), 53 (in part), 57 (in part), 58 (in part).

Rejected as subsumed or irrelevant and immaterial: paragraphs 6 (in part), 8 (in part), 10 (in part), 13, 15, 16, 18 (in part), 20 (in part), 21 (in part),

23, 24, 25, 26, 28, 29, 30 (in part), 34, 35, 36, 38, 39, 43, 44 (in part), 50,

55, 57 (in part), 58 (in part).

Rejected as a restatement or commentary on the evidence: paragraphs 11, 14, 17, 22 (in part), 23, 27 (in part), 29, 30, 34, 35, 36, 37, 48, 40, 41, 42,

44 (in part), 45, 46 (in part), 47 (in part), 48 (in part), 49 (in part), 50, 51, 52, 53 (in part), 54, 55, 56.

Rejected as not supported by the evidence: 19 (in part), 20 (in part), 32 and 33.

COPIES FURNISHED:

William Frederick Whitson, Esquire Senior Attorney

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lee Sims Kniskern, Esquire 2121 Ponce de Leon Blvd.

Suite 630

Coral Gables, Florida 33134

Dr. Marm Harris Executive Director

Department of Business and Professional Regulation 1940 North Monore Street

Tallahassee, Florida 32399-0792

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 the 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 consult with the agency that will issue the final order in this case concerning their 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: 94-007243

Orders for Case No: 94-007243