STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL J. CALLAHAN )

)

Petitioner, )

)

vs. ) CASE NO. 95-0007RX

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, scheduled a formal hearing in the above-styled case for February 13, 1995. In accordance with the stipulation of the parties, the formal hearing in this case was thereafter cancelled, and the case was submitted to the Hearing Officer for decision on the pleadings.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

8001 North Dale Mabry Highway, Suite 301-A Tampa, Florida 33614

For Respondent: Allen Grossman, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 31399-1050 STATEMENT OF THE ISSUES

The issues for resolution in this case are whether Rules 59R-9008(5) and 59R-9008(7), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority as asserted by Petitioner.

PRELIMINARY STATEMENT

On January 4, 1995, Petitioner, Daniel J. Callahan, filed a Petition to Invalidate Rule 59R-9008, Florida Administrative Code, challenging Rules 59R- 9008(5) and (7), Florida Administrative Code, as invalid exercises of delegated legislative authority. On January 19, 1995, an order was entered setting the case for formal hearing on February 13, 1995.

Pursuant to Rule 60Q-2.030(1), Florida Administrative Code, on January 23, 1995, the Respondent, Agency for Health Care Administration, Board of Medicine, filed a Motion for Summary Final Order. The parties agreed that the case involved no issues of disputed material facts, and Respondent on February 8, 1995, filed a Stipulation of Standing. On February 17, 1995, Respondent filed a certified copy of Rule 59R-9008, Florida Administrative Code.

On February 21, 1995, Petitioner filed his Response to the Motion for Summary Final Order. In accordance with the stipulation of the parties, the case was thereafter submitted for decision on the pleadings.

FINDINGS OF FACT

1. Petitioner, Daniel J. Callahan, is a physician currently licensed to practice medicine in the State of Florida pursuant to Chapters 455 and 458, Florida Statutes.

   
   

2. Respondent, Agency for Health Care Administration, Board of Medicine, (Board of Medicine), is the state agency charged with the duty and responsibility to administer Chapter 458, Florida Statutes.

   
   

3. Petitioner is the subject of three disciplinary actions brought by the Board of Medicine which are now pending before the Division of Administrative Hearings, case Nos. 93-6020, 93-6021, and 94-3208. The Administrative Complaints filed in these cases set forth allegations of sexual misconduct against Petitioner.

   
   

4. The Board of Medicine has filed a motion for official recognition of Rule 59R-9008, Florida Administrative Code, in the disciplinary actions against the Petitioner.

   
   

5. Hearing in the disciplinary cases against Petitioner is currently scheduled to begin on March 29, 1995.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.56, Florida Statutes.

   
   

7. As stipulated by the parties, Petitioner is substantially affected by the challenged rules, and Petitioner has standing to seek a determination as to the validity of the rules as provided in section 120.56(1), Florida Statutes.

   
   

8. Rule 59R-9008(5) provides:

   
   

   1. Once a physician-patient relationship has been established, the physician has the burden of showing that the relationship no longer exists. The mere passage of time

      since the patient's last visit to the physician is not solely determinative of the issue. Some of the factors considered by the Board in determining whether the physician-patient relationship has terminated include, but are not limited to, the following:

      1. formal termination procedures;

      2. transfer of the patient's case to another physician;

      3. the length of time that has passed since the patient's last visit to the physician;

      4. the length of the professional relationship;

      5. the extent to which the patient has confided

         personal or private information to the physician;

      6. the nature of the patient's medical problem;

      7. the degree of emotional dependence that the patient has on the physician;

         
         

9. Rule 59R-9008(7) provides:

   
   

   (7) A patient's consent to, initiation of, or participation in sexual behavior or involvement with a physician does not change the nature of the conduct nor lift the statutory prohibition.

   
   

10. Rule 59R-9008 was promulgated May 9, 1994 and cites as applicable implementing authority sections 458.329 and 458.331(1)(j), Florida Statutes.

    
    

11. Section 458.329, Florida Statutes provides:

    
    

    458.329 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.

    
    

12. Section 458.331(1)(j), Florida Statutes provides:

    
    

    (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.

    
    

13. Respondent submits that Rule 59R-9008(5), Florida Administrative Code, does not impermissibly shift the burden of proof to the physician, but merely codifies the existing Florida caselaw regarding the raising of an affirmative defense which may be asserted by a physician in a disciplinary proceeding. In support of this position Respondent primarily relies on Yero v. Department of Professional Regulation, Board of Medical Examiners, 481 So.2d 61 (Fla. 1st DCA 1985).

    
    

14. In Yero, the Board of Medical Examiners instituted a disciplinary action against a psychiatrist alleging sexual misconduct with a patient. The Hearing Officer found that the Board failed to prove that the physician-patient relationship existed at the time of the sexual activity between the psychiatrist and patient. The Hearing Officer further found that the psychiatrist had not used the physician-patient relationship for the purpose of inducing the patient

    to engage in sexual activity. The Hearing Officer recommended dismissal of the complaint. The Board rejected the Hearing Officer's findings in this regard, and imposed penalties.

    
    

15. On appeal, the First District Court of Appeal reversed the Board, and reinstated the findings and recommended order of the Hearing Officer. The Yero court held that the determination of the termination of the patient-physician relationship was subject to ordinary methods of proof involving the weighing of the evidence and credibility of the witnesses, and therefore within the province of the hearing officer.

    
    

16. There is nothing in the Yero decision that addresses the issue of a physician raising termination of the physician-patient relationship as an affirmative defense, nor does the court in that case discuss placing the burden on a physician to prove the termination of the physician-patient relationship. In this respect, the Yero decision notes that the statute does not require that sexual activity take place during the physician-patient relationship; however, the court recognizes that the point of termination of the physician-patient relationship may be relevant to the ultimate issue of whether a physician used that relationship to induce a patient to engage in sexual activity.

    
    

17. Under these circumstances, the court's decision in Yero neither supports the Board's promulgation of Rule 59R-9008(5), Florida Administrative Code, nor does the rule represent a codification of the Yero decision.

    
    

18. The other Florida case cited by the Board of Medicine, Solloway v. Department of Professional Regulation, 421 So.2d 573 (Fla. 3d DCA 1982), merely held that the evidence before the court sustained a revocation of a psychiatrist's license for engaging in sexual activity with a patient before the psychiatrist-patient relationship had been properly terminated. The court in Solloway made no reference to raising termination of the relationship as an affirmative defense, nor to the placing of a burden on the physician to prove the termination of the relationship.

    
    

19. The effect of Rule 59R-9008(5), Florida Administrative Code, is to require the trier of fact to presume that once a physician-patient relationship is established by the Board, the relationship continues at all material times unless and until the physician comes forward with substantial competent evidence to prove that the relationship terminated. (Indeed, Rule 59R-9008(4), Florida Administrative Code, specifically states that a person is presumed to be a patient until the relationship is terminated.) Under Florida law, "...the power to establish a presumption 'is reserved to the courts and the legislative branch.'" Chandler v. Department of Health and Rehabilitative Services, 593 So.2d 1183, 1184 (Fla. 1st DCA 1992) citing McDonald v. Department of Professional Regulation, 582 So.2d 660, 663 (Fla. 1st DCA 1991). As indicated above, the Yero and Solloway cases cited by the Board of Medicine do not specifically or implicitly create such a presumption.

    
    

20. Disciplinary statutes are subject to strict scrutiny. McDonald v. Department of Professional Regulation, 593 So.2d at 664. The statutes cited by the board as implementing authority do not provide a specific legislative basis for this presumption. Without either a specific judicial or legislative basis for the presumption set forth in Rule 59R-9008(5), Florida Administrative Code, the Board of Medicine does not have the authority under Florida law to establish such a presumption. Accordingly, to the extent that Rule 59R-9008(5), Florida Administrative Code establishes a presumption, the rule constitutes an invalid exercise of delegated legislative authority. The remaining provisions

    of the rule, specifically Rule 59R-9008(5)(a)-(g), Florida Administrative Code, which establish guidelines for the determination of whether a physician-patient relationship has terminated, do not create an impermissible presumption, and therefore are not an invalid exercise of delegated legislative authority.

    
    

21. Additionally, the effect of Rule 59R-9008(5), Florida Administrative Code, is to require a physician charged in a disciplinary action to abandon his right to remain silent and to respond to a matter asserted in the Administrative Complaint. In this respect, Rule 59R-9008(5), Florida Administrative Code, contravenes the Florida Supreme Court's holding in Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Neither statute cited as authority for the promulgation of the rule purports to authorize the Board to require a physician to abandon his right to remain silent and to respond to a material allegation of the Administrative Complaint. Accordingly, to the extent Rule

    59R-9008(5), Florida Administrative Code, requires a physician in a disciplinary action to abandon his right to remain silent, the rule constitutes an invalid exercise of delegated legislative authority. For the reasons expressed above, the remaining provisions, specifically Rule 59R-9008(5)(a)-(g), Florida Administrative Code, are valid.

    
    

22. As to Rule 59R-9008(7), Florida Administrative Code, the Board of Medicine submits that the rule is a restatement of the statutory presumption set forth in section 458.331(1)(j), Florida Statutes. Under Florida law, the statutory presumption must be construed as rebuttable. Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla. 1976). Indeed, the Division of Administrative Hearings and the Board of Medicine have previously construed and applied this statutory presumption as rebuttable. Department of Professional Regulation, Board of Medicine v. Ralph Albert Rophie, Division of Administrative Hearings, Case No. 92-0025, Final Order entered October 27, 1992.

    
    

23. It is significant that neither section 458.329 nor section 458.331(1)(j), Florida Statutes, specifically prohibits all sexual activity between a physician and a patient. Section 458.329, Florida Statutes, prohibits a physician from using the physician-patient relationship to induce a patient to engage in sexual activity. Section 458.331(1)(j), Florida Statutes, further prohibits a physician from exercising influence within the physician-patient relationship for purposes of engaging the patient in sexual activity. By clear implication, the statutes appear to allow sexual activity between a physician and a patient where there is no use of, or influence within, the physician- patient relationship by the physician to induce the patient to engage in sexual activity. For the reasons expressed above, the remaining provisions, specifically Rule 59R-9008(5)(a)-(g), Florida Administrative Code, are valid.

    
    

24. Rule 59R-9008(7), Florida Administrative Code, provides that the consent, initiation, or involvement of a patient in sexual activity with a physician neither changes the nature of the conduct nor lifts the statutory prohibition. In this respect the rule on its face does not specifically alter the statutory rebuttable presumption with respect to the consent of the patient. Similarly, the rule does not explicitly expand the statutory prohibitions, nor extend the statutory prohibitions to prohibit all sexual activity between a physician and a patient. Accordingly, Rule 59R-9008(7), Florida Administrative Code does not constitute an invalid exercise of delegated legislative authority.

FINAL ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby

ORDERED:

The Petition for Determination of Invalidity of Rule 59R-9008(5) is GRANTED to the limited extent that the first sentence of Rule 59R-9008(5) is hereby stricken. The Petition for Determination of Invalidity of Rule 59R-9008(7) is DENIED.

DONE and ENTERED this 7th day of March, 1995, in Tallahassee, Leon County, Florida.

RICHARD HIXSON

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 7th day of March, 1995.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire

8001 N. Dale Mabry Hwy., Suite 301-A Tampa, Florida 33614

Allen Grossman, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0770

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Mr. Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings, and a second copy accompanied by filing fees prescribed by law with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-000007RX

Orders for Case No: 95-000007RX