STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0793

) PHILIP WILLIAM LORTZ, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 14, 1996 in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer Suzanne F. Hood.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Frederick Whitson, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: William Furlow, Esquire

Post Office Box 1877 Tallahassee, Florida 32301

STATEMENT OF ISSUES

The issues are whether Respondent committed the offenses set forth in the Administrative Complaint, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 29, 1996 Petitioner Agency for Health Care Administration (Petitioner) filed an Administrative Complaint against Respondent Philip William Lortz, M.D. (Respondent). Respondent subsequently requested a formal administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner referred this matter to the Division of Administrative Hearings on February 9, 1996.

Petitioner filed a Motion to Amend Administrative Complaint on February 23, 1996. By Order dated March 4, 1996 the undersigned granted that motion.

Petitioner filed its Amended Administrative Complaint on March 25, 1996, alleging that Respondent violated Sections 458.331(1)(t), 458.331(1)(j), 458.331(1)(x), and 458.331(1)(s), Florida Statutes.

At the hearing on May 14, 1996, Petitioner presented the testimony of four witnesses. Petitioner offered eighteen exhibits, eleven of which were admitted into evidence during the hearing. Respondent objected to the other seven exhibits on grounds that they are hearsay or inadmissible for lack of a predicate. The undersigned accepted all of Petitioner's exhibits into evidence but reserved ruling on whether Petitioner's Exhibits 2-8 could be relied upon as a basis for Findings of Fact. Respondent's objection to the admissibility of Petitioner's Exhibits 2-8 as anything more than hearsay is sustained. 1/

Respondent testified on his own behalf and presented the testimony of one witness. Respondent offered one exhibit which was admitted into evidence.

The transcript of the hearing was filed on June 13, 1996. The parties filed their proposed findings of fact and conclusions of law on June 24, 1996. The Appendix to this Recommended Order contain the undersigned's rulings on each of the parties' proposed findings of fact.

FINDINGS OF FACT

1. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0066421. He is thirty-eight years old. He specializes in the practice of neurology.

   
   

2. Respondent worked at a medical clinic in 1995 until July 31, 1995. While he was employed at the clinic, he became friends with Barrie Williamson who also worked at the clinic. Ms. Williamson was twenty or twenty-one years old.

   
   

3. Respondent quit working for the medical clinic on July 31, 1995. Shortly thereafter, Ms. Williamson lost her job at the clinic.

   
   

4. In August of 1995, Ms. Williamson invited Respondent to have dinner and watch a movie at the home of her twenty-two year old cousin, A.S. Ms. Williamson practically lived with A.S. and her boyfriend, Phillip McNutt. On the designated evening, Respondent took a bottle of wine to A.S.'s apartment. The nature of this get-together was strictly social.

   
   

5. Sometime after the party, Respondent called Ms. Williamson at A.S.'s apartment. When A.S. answered the phone, Respondent identified himself as "Rastus the Nastus." A.S. made some sexual comments to the Respondent in jest. She did not realize to whom she was speaking until Respondent mentioned a bottle of wine. A.S. then gave the phone to Ms. Williamson.

   
   

6. In August of 1995, A.S. and Phillip McNutt were planning to go to Australia. A.S. needed a physical examination in order to get a visa. She called Respondent and asked him if he would like to see her naked. When Respondent asked A.S. what she meant, she told him she needed a physical examination because she was moving to Australia. Respondent agreed to perform the physical examination. Respondent formed a physician/patient relationship with A.S. at that time.

   
   

7. A.S. and Respondent planned on several occasions for A.S. to go to Respondent's home so he could perform the physical examination. Something came up on each occasion that prevented A.S. from going to Respondent's home. Respondent was aware that A.S. was coming to his house to get her exam done so she could get her Australian visa. He also thought she was coming on to him and wanted to fool around.

8. On September 9, 1995, A.S. called Respondent and told him she would be at his house around 2:00 p.m. A.S. asked Respondent if there was anything she could take to him. Respondent told her to bring wine and chocolates.

   
   

9. Next, A.S. and Ms. Williamson went to a wallpaper store and a fabric store. They also went to a paint store to buy paint because Ms. Williamson was moving into a new house. They met with a professional painter who had worked for Ms. Williamson's mother. The painter agreed to help Ms. Williamson paint the inside of her house.

   
   

10. During this time, A.S. bought a six-pack of beer and drank two or three of them. She also bought a keg of beer because Ms. Williamson expected other people to show up for a "painting party."

    
    

11. Initially, Ms. Williamson planned to accompany A.S. to Respondent's home on September 9, 1995. She decided not to do so because she did not want to leave the painter alone in her house. A.S. asked Ms. Williamson if it was safe to go to Respondent's home by herself. Ms. Williamson answered affirmatively.

    
    

12. A.S. arrived at Respondent's home around 4:00 p.m. on September 9, 1995. She knocked on the door which was unlocked. When Respondent did not answer, she let her in. She was carrying a beer, a bottle of wine, and a box of chocolates. Her little dog was with her.

    
    

13. Initially, A.S. and Respondent sat on the couch. A.S. showed Respondent the medical examination form that needed to be signed by a doctor in order for A.S. to obtain an Australian visa. During their conversation about the requirements of the medical examination, A.S. talked to Ms. Williamson on the phone.

    
    

14. The first section of the medical form requires an applicant to give his or her name, address, gender and date of birth. The applicant must also attach a photograph. A medical examiner must certify in writing that the photographic image is a true likeness of the examinee. The form which is the subject of this proceeding does not have a photograph attached to it. While

    A.S. and Respondent were reviewing the form, A.S. called Mr. McNutt to ask about her passport photographs.

    
    

15. The second section of the form is entitled applicant's declaration.

    A.S. completed this section in part while she was at Respondent's home. One question inquires whether the applicant consumes alcohol, and if so, how much. The subject form has a mark in the "no" box.

    
    

16. The next section of the form is entitled examining doctor's findings and requires the physician's signature. This section of the subject form is not filled in except for a blood pressure reading: Systolic, 110; Distolic, 70.

    
    

17. While Respondent and A.S. discussed the form, they drank some of the wine that she brought with her to Respondent's house.

    
    

18. After reviewing the form, Respondent told A.S. that he could not do the exam at his home. He told her she needed to set up an appointment at Dr. McCoy's office where Respondent was occasionally seeing patients.

    
    

19. A.S. smoked one of Respondent's cigarettes. Because it was his last one, A.S. and Respondent went to the local convenience store to buy more

    cigarettes. They drove in A.S.'s car. While they were at the store, Respondent cleaned the beer cans out of A.S.'s car. She introduced Respondent to a family friend.

    
    

20. When they returned to Respondent's home, Respondent suggested that they go into another room. A.S. removed her cut-off overalls, went into the other room, and lay on the floor. She pulled the top of her body suit down and took off her bra.

    
    

21. Respondent began to perform a breast examination on A.S. During this examination, he asked A.S. whether she ever checked her own breast. Respondent told A.S. how important breast examinations are and showed her how they should be done. No actual sexual activity occurred between A.S. and Respondent until he started stroking her breast in the role of a doctor during the physical examination.

    
    

22. A.S. told Respondent she did not feel comfortable with her clothes off. Respondent asked her if she would be more comfortable if he took his shirt off. A.S. said she would. When he began undressing, A.S. told him she was only joking.

    
    

23. After A.S. unsnapped the bottom of her body suit, Respondent checked the lymph nodes in A.S.'s groin area. When A.S. asked him what he was doing, Respondent explained that persons with HIV will sometimes have swollen lymph nodes. He also explained that she had lymph nodes under her arms and showed her where they were.

    
    

24. During this activity, Respondent saw evidence that A.S. was wearing a tampon. He got up and sat down on the end of a weight-lifting bench which was in the room.

    
    

25. A.S. also sat up. She asked him about a riding crop and bull whip that were in the room. He told her they were from a previous girlfriend.

    
    

26. Thereafter, Respondent attempted to insert his penis in A.S.'s mouth.

    A.S. became resistive and told Respondent that they should not be doing this. Respondent did not take her seriously, and when he would not stop, A.S. bit his penis. Respondent pulled A.S.'s hair and told her to let go of his penis.

    
    

27. When A.S. quit biting Respondent he became very angry. He threw A.S. down on the floor, and bit her on the neck leaving the imprint of his teeth.

    
    

28. A.S. then pulled Respondent's hair. A struggle ensued in which A.S. received bruises to her neck, face, breasts, and abdomen.

    
    

29. When the struggle was over, Respondent went into the living room.

    A.S. got dressed and when she entered the living room, she threw the Respondent's watch at him. He, in turn, gave her the medical form and told her to leave.

    
    

30. A.S. left Respondent's home with her little dog. She went straight to Ms. Williamson's house. Before A.S. arrived at her cousin's house, Respondent called Ms. Williamson and asked her to tell A.S. that if she still needed her physical for Australia to give him a call.

    
    

31. When A.S. arrived at Ms. Williamson's house, A.S. appeared upset. She eventually told her cousin what had happened. A.S. was crying and was sick to

    her stomach. Ms. Williamson saw bruises on A.S. that had not existed before her visit to Respondent's home.

    
    

32. Ms. Williamson took A.S. to Mr. McNutt's apartment. From there A.S. went to the Tallahassee Police Station.

    
    

33. As a result of Respondent's conduct on September 9, 1995, the Professional Recovery Network requested that he undergo a psychiatric examination in January of 1996. The examination revealed that Respondent has a personality disorder. A personality disorder is an enduring personality trait that causes dysfunction. A diagnosis of "personality disorder not otherwise specified" applies when a person has several enduring personality traits which cause problems but no single trait stands out as being prominent. Respondent suffers from "personality disorder not otherwise specified" with narcissistic, obsessive-compulsive, antisocial, and paranoid personality traits (DSM-IV, 301.9). These personality traits in Respondent are chronic and indicative of chronic maladjustment.

    
    

34. Respondent shows his narcissistic personality traits by exhibiting a sense of entitlement, a lack of empathy, interpersonal exploitation for personal gratification, and arrogance.

    
    

35. Respondent is a perfectionist who is inflexible and rigid. These are obsessive-compulsive personality traits.

    
    

36. Respondent is impulsive. He is irritable and aggressive when he does not get his way. These are antisocial personality traits.

    
    

37. Respondent's paranoid personality traits are evidenced by suspicions that others are exploiting, harming, or deceiving him. He sees that world as a threatening place. He perceives attacks on his character or reputation that are not apparent to others and reacts angrily.

    
    

38. Respondent tends to distance himself from others because of his lack of ability to trust. He reads hidden, demeaning, or threatening messages into benign remarks or events.

    
    

39. Respondent's personality disorder is responsible for: his chronic interpersonal difficulties; his fear of loss of control; his baseline anger and irritability; his over-reactivity; his sensitivity to criticism, his mild anxiety and depression; his difficulty in trusting others; and his defensive distancing of himself from other in a narcissistic fashion.

    
    

40. Respondent's personality disturbance also explains his tendencies to impulsively act out in a physical or verbal manner, particularly under periods of stress. Because Respondent cares about how he appears to others, he is likely to be remorseful after an impulsive incident.

    
    

41. Professional boundaries are the psychological and physical rules that protect not only the professional relationship but also the patient who is in a position of vulnerability due to the imbalance of power between doctor and patient. In this case, Respondent blurred the boundaries between his role as a physician and his role as a biological being when he agreed to perform a physical examination as doctor in his home on a female with whom he was intending to have sexual relations.

42. Regardless of the mixed messages that A.S. may have been sending, Respondent crossed the professional boundary after A.S. arrived at his home.

    His conduct from that point on was below the level of care, skill and treatment which is recognized by reasonably prudent neurologists as being acceptable under similar conditions and circumstances. He completely failed to recognize the need for a clear boundary between his doctor/patient relationship with A.S. and his desire for personal gratification.

    
    

43. There is clear and convincing evidence that Respondent violated the standard of care when he: (1) drank alcohol with a patient during an appointment for a physical examination; (2) participated in consensual or non- consensual sexual activities with a patient during an appointment for a physical examination; and (3) offered to remove his clothing during an appointment for a physical examination.

    
    

44. Respondent is guilty of sexual misconduct because he used his physician-patient relationship with A.S. to engage her in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment.

    
    

45. Respondent is guilty of exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity.

    
    

46. Respondent's personality disorder impairs his ability to practice medicine with reasonable skill and safety. Until Respondent receives appropriate treatment for his personality disorder, he should not be allowed to return to an unrestricted practice.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

48. Pursuant to Section 458.331(2), Florida Statutes, Petitioner is empowered to revoke suspend or otherwise discipline the license of a physician who violates Section 458.331(1).

    
    

49. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. It has the burden of proving by clear and convincing evidence that Respondent committed the offenses set forth in the Amended Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

    
    

50. Respondent established a physician/patient relationship with A.S. when he agreed to review the medical examination form and perform the physical examination in his home. He disclosed the existence of the professional relationship in his statements to Dr. Barbara Stein during a forensic psychiatric examination.

    
    

51. In those statements, Respondent admitted that one of A.S.'s reasons for visiting his home was for a physical examination so that she could get her visa to go to Australia. When A.S. presented at Respondent's home, he told her that she needed to set up an appointment at Dr. McCoy's office where Respondent occasionally saw patients. Respondent then admitted that no sexual activity took place until he started stroking A.S.'s breast in the role as doctor during the physical examination. After A.S. left Respondent's home, he sent a message

    to A.S. informing her that if she still needed her physical for Australia to give him a call. Respondent's testimony at hearing which is contrary to these statements is not persuasive.

    
    

52. Section 458.305(3), Florida Statutes, states that the "'[p]ractice of medicine' means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition."

    
    

53. Respondent concedes that a physical examination is a medical act when a physician/patient relationship exists between the doctor and the person being examined. In the instant case, clear and convincing evidence indicates that Respondent attempted to perform an physical examination on his patient A.S. when he reviewed her medical history and examined her breasts and lymph nodes. The testimony of the three doctors who testified at the hearing support this conclusion.

    
    

54. Count one of the Amended Administrative Complaint charges Respondent with violating Section 458.331(1)(t), Florida Statutes, which prohibits:

    
    

    . . . [g]ross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recog-

    nized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

55. Count two charges Respondent with violating Section 458.331(1)(j), Florida Statutes, which prohibits a physician from:

    
    

    . . . [e]xercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity.

    
    

56. Count three charges Respondent with violating Section 458.329, Florida Statutes, which states as follows:

    
    

    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.

    
    

57. Rule 59R-9.008, Florida Administrative Code, states the following:

    
    

    1. Sexual contact with a patient is sexual misconduct and is a violation of Sections 458.329 and 458.331(1)(j), Florida Statutes.

       
       

    2. For purposes of this rule, sexual misconduct 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. may reasonably be interpreted by the patient as being sexual.

       2. Sexual behavior or involvement with a patient not actively receiving treatment from the physician, including verbal or physical behavior or involvement which meets any one or more of the criteria in paragraph (2)(a) above and which

          1. results from the use or exploitation of trust, knowledge, influence or emotions derived from the professional relationship;

          2. misuses privileged information or access

             to privileged information to meet the physician's personal or sexual needs; or

          3. is an abuse or reasonably appears to be an abuse of authority or power.

          
          

    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.

       
       

    4. The determination of when a person is a patient for purposes of the rule is made on a case by case basis with consideration given to

       the nature, extent, and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services from a physician is not determinative of this issue. A person is presumed to remain a patient until the patient physician-relationship is terminated.

       
       

    5. 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 care 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.

          
          

    6. Sexual conduct between a physician and a former patient after termination of the physician patient relationship will constitute a violation of the Medical Practice Act if the sexual contact

       is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.

       
       

    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.

       
       

    8. In some situations, a physician's sexual contact with a patient may be the result of a mental condition which may render the physician unable to practice medicine with reasonable skill and safety to patients pursuant to Section 458.331(1)(s), Florida Statutes.

       
       

    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, Florida Administrative Code, and

       include restriction or limitation of the physician's practice, revocation or suspension of the physician's license.

       
       

58. Count three also alleges that by violating Section 458.329, Florida Statutes, Respondent violated Section 458.331(1)(x), Florida Statutes, which prohibits the violation of any provision in Chapter 458, Florida Statutes.

    
    

59. Count four charges Respondent with violating Section 458.331(1)(s), Florida Statutes, by:

    
    

    . . . [b]eing unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition.

    
    

60. Petitioner has met its burden of proving by clear and convincing evidence that Respondent is guilty as charged in all four counts of the Amended Administrative Complaint.

61. Rule 59R-8.001(2), Florida Administrative Code, sets forth the range of penalties which may be imposed upon Respondent. These penalties may be aggravated or mitigated upon consideration of specified factors listed in Rule 59R-8.001(3), Florida Administrative Code.

    
    

62. In this case, Respondent's penalty is subject to enhancement pursuant to Rule 59R-8.001(3), Florida Administrative Code, for three reasons. First, Respondent exposed his patient A.S. to severe injury, physical or otherwise. Second, Respondent currently presents a danger to future patients. Third, Respondent is guilty of four separate offenses.

    
    

63. There are no mitigating factors to be considered.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, recommended that Petitioner enter a Final Order finding Respondent guilty of all offenses as charged in the Amended Administrative Complaint and revoking his license to practice medicine.

DONE and ENTERED this 13th day of August, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD, Hearing Officer 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 13th day of August, 1996.

ENDNOTE

1/ During the hearing, Petitioner offered the following exhibits as competent evidence: (a) Petitioner's Exhibits 2 and 4, video-taped depositions of A.S. and Phillip McNutt respectively, taken on October 30, 1995; and (b) Petitioner's Exhibits 3 and 5, transcripts of the video-taped depositions of A.S. and Phillip McNutt taken on October 30, 1995.

Petitioner argued that these exhibits were depositions taken to perpetuate testimony. Petitioner asserted that the exhibits were admissible pursuant to Rule 1.330(a)(3), Florida Rules of Civil Procedure, which states in pertinent part:

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; . . . (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; . . . .

There is record evidence that A.S. and Phillip McNutt were at a greater distance than 100 miles from Tallahassee, Florida, during the hearing. They were not only out of the state but in Australia. The finding that A.S. and Phillip were unavailable to testify at the hearing is supported by the witnesses' sworn deposition testimony and Ms. Williamson's testimony at the hearing.

Respondent argued that the above referenced exhibits are hearsay because Petitioner did not comply with the requirements of Rule 1.290(a), Florida Rules of Civil Procedure, before taking the depositions. Rule 1.290(a)(1), Florida Rules of Civil Procedure, sets forth the requirements for filing a verified petition in circuit court to obtain an order authorizing the taking of a deposition before action to perpetuate testimony. Rule 1.290(a)(1), Florida Rules of Civil Procedure, states as follows:

(a) Before Action.

(1) Petition. A person who desires to perpetuate that person's own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of Florida, but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner's interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and the addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and shall ask for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

Rule 1.290(a)(2), Florida Rules of Civil Procedure, sets forth the procedure for serving notice of a hearing in circuit court on a petition to perpetuate testimony.

Rule 1.290(a)(3), Florida Rules of Civil Procedure, states in part:

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the deposition shall be taken upon oral examination or written interrogatories. . . .

Depositions to perpetuate testimony taken under Rule 1.290(a), Florida Rules of Civil Procedure, "may be used in any action involving the same subject matter subsequently brought in any court in accordance with rule 1.330." Rule 1.290(a)(4), Florida Rules of Civil Procedure.

Section 120.58(1)(b), Florida Statutes, gives an agency or an hearing officer the power to:

swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon its own motion, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure.

Section 120.58(1)(b), Florida Statutes.

Section 455.223, Florida Statutes, discusses Petitioner's power to administer oaths, take depositions, and issue subpoenas:

For the purpose of any investigation or proceeding conducted by the department or the Agency for Health Care Administration, the department or the agency shall have the power to administer oaths, take depositions, make inspections when authorized by statute, issue subpoenas which shall be supported by affidavit, serve subpoenas and other process, and compel the attendance of

witnesses and the production of books, papers, documents, and other evidence. The department or the Agency for Health Care Administration shall exercise this power on its own initiative or whenever requested by a board or the probable cause panel of any board. Challenges to and enforcement of the subpoenas and orders shall be handled as provided in s. 120.58.

Section 455.223, Florida Statutes.

Chapters 120 and 455, Florida Statutes, clearly give agencies and hearing officers power to effect discovery. Rules 1.280 through 1.400, Florida Rules of Civil Procedure, apply in administrative proceedings before the Division of Administrative Hearings to the extent they serve this purpose. Rule 60Q-2.019, Florida Administrative Code. However, Rules 1.290(a)(1) and 1.330(a)(3), Florida Rules of Civil Procedure, do not relate to discovery in the general sense of the word, i.e. the process of obtaining facts and information about a case to assist a party in preparing for trial. Moreover, the depositions in question were not taken for traditional discovery purposes.

Respondent cites no authority for the applicability of Rule 1.290(a), Florida Rules of Civil Procedure, during an administrative investigation and subsequent proceeding. Likewise, Petitioner cites no authority for admission into evidence of a deposition pursuant to Rule 1.330(a)(3), Florida Rules of Civil Procedure, where the deposition in question was taken before administrative action.

In this case, Respondent had adequate notice of the depositions as to time, place and purpose. He was aware of the witnesses' impending departure to Australia. He exercised his right to cross-examine the witnesses through counsel. He was present during both depositions.

Respondent did not apply for a protective order before the depositions commenced. He did not object on October 30, 1995 to the Petitioner's intended use of the depositions while there was time for Petitioner to cure the objection. See Rules 1.330(b) and 1.330(d), Florida Rules of Civil Procedure.

Respondent suffered no prejudice for lack of knowledge of the relevant issues in the case. He was aware of the facts of the case as alleged in the Administrative Complaint because he reviewed the Petitioner's investigative files prior to the depositions.

Nevertheless, Respondent's objection to the admissibility of Petitioner's Exhibits 2-5, as evidence which standing alone may support findings of fact, is sustained. A hearing officer cannot create a process for preserving testimony, taken during an administrative investigation, for use as competent evidence in an subsequent administrative proceeding without statutory authority.

Accordingly, Petitioner's Exhibits 2-5 are admissible only as hearsay. This ruling does not preclude the applicability of Rule 1.330(a)(3), Florida Rules of Civil Procedure, in administrative proceedings where the deposition is taken after the filing of an administrative complaint or petition.

Section 120.58(1)(a)1, Florida Statutes, states in pertinent part: Irrelevant, immaterial, or unduly repetitious evidence shall be excluded,

but all other evidence of a type commonly relied upon by reasonably prudent person 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. 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.

The undersigned has relied on Petitioner's Exhibits 2-5 only to the extent that they supplement or explain the testimony of Dr. Stein and Ms. Williamson. The same holds true for Petitioner's Exhibit 7 and 8, audio tape and transcript respectively of A.S.'s statement to the Tallahassee Police Department on September 12, 1995.

Petitioner's Exhibit 6 is a video-tape which was attached as an exhibit to Phillip McNutt's October 30, 1995 deposition. Phillip McNutt allegedly made

this video-tape to show the injuries that Respondent inflicted upon A.S. Respondent's objection to this exhibit based on a lack of predicate is overruled. The tape, which does have recorded voices, is hearsay which supports the testimony of Respondent and Ms. Williamson.

APPENDIX

The following constitutes the undersigned's rulings on each of the parties' proposed findings of fact.

Petitioner's Proposed Findings of Fact.

1-2. Accept in Findings of Fact 1.

1. Accept in Findings of Fact 2-4.

2. Reject first sentence as not supported by competent evidence. Accept that Respondent agreed to perform the physical in Findings of Fact 6.

3. Reject; no competent evidence.

4. Accept in Findings of Fact 5.

5. Reject first sentence; no competent evidence. Last two sentences accepted in Findings of Fact 5.

6. Accepted.

7. Accept as restated in Findings of Fact 6.

8. Accept in Findings of Fact 6.

9. Accept first sentence. Accept second sentence as restated in Findings of Fact 7-8.

10. Reject in part; Respondent admitted that he initially believed A.S. had two reasons for visiting his home including the physical examination. In hindsight, he realized that A.S. was primarily there for her physical. See Findings of Fact 7.

11. Reject; no competent evidence.

12. Reject; no competent evidence.

13. Accept; see Findings of Fact 7.

14. Accept in part; see Findings of Fact 8 &11.

15. Accept as restated in Findings of Fact 11.

16. Rejected; not relevant.

17. Accept first two sentences; see Findings of Fact 8. Reject second two sentences; no competent evidence.

18. Accept; Findings of Fact 13.

19. Accept; Findings of Fact 14 & 16.

20. Accept only as restated in last sentence of Findings of Fact 14. Reject in part due to lack of competent evidence.

21. Accept in part; see Findings of Fact 13-17. Reject in part due to the lack of competent evidence.

22. Accept in part; see Findings of Fact 21 & 23-24. Reject in part due to the lack of competent evidence.

23. Accept in part as restated; see Findings of Fact 20. Reject in part due to lack of competent evidence.

26-27. No competent evidence to support finding that Respondent instructed A.S. to take off her top. Otherwise accepted as stated in Findings of Fact 20.

28-31. Accepted as restated in Findings of Fact 21 & 23.

Rejected in part due to lack of competent evidence.

32. Accepted as restated in Findings of Fact 22.

33-34. Accepted in part as restated in Findings of Fact 24-25.

Rejected in part due to lack of competent evidence.

35-36. Rejected; no competent evidence.

37-46. Accepted in part; see Findings of Fact 25-27. Reject in part; no competent evidence.

47. Accepted but subordinate to Findings of Fact 25-27. 48-49. Accepted as restated in Findings of Fact 28.

50. Reject; no competent evidence.

51-54. Accepted in part as restated in Findings of Fact 29-31.

1. Rejected; no competent evidence.

2. Accepted but irrelevant.

3. Accepted but irrelevant. 58-59. Not findings of fact.

60-61. Accepted but not necessary to resolution of case.

62. Not findings of fact.

63-65. Accepted; see Findings of Fact 41-45.

66-67. Rejected in part, no competent evidence.

Respondent's testimony was not persuasive where it conflicted with statements he made to Dr. Stein or where it conflicted with the testimony of Ms.

Williamson.

68-77. Accepted as subordinate facts.

1. Accepted as restated in Findings of Fact 40-41.

2. Accepted in Findings of Fact 6.

80-81. Accepted as restated in Findings of 1-45.

82-89. Accepted in or as subordinate to Findings of Fact 32-39.

1. Accepted in Findings of Fact 45. 91-95. Accepted as subordinate facts.

   96-99. Accepted as subordinate facts. See Findings of Fact 45. Respondent's Proposed Findings of Fact.

   1. Accepted in Findings of Fact 1.

   2. Accepted in or as subordinate to Findings of Fact 2-3.

   3. Accepted in Findings of Fact 4.

   4. Accepted as restated in Findings of Fact 4.

5-6. Accepted in part and rejected in part; see Findings of Fact 6-8. Specifically reject Respondent's testimony that he never intended to perform A.S.'s physical examination in his home. See Finding of Fact 7.

1. Accepted in part as restated in Findings of Fact 12.

2. Reject that Respondent ever told A.S. "he could not perform a physical examination." See Findings of Fact 18.

3. Accepted in or subordinate to Findings of Fact 13-18.

4. Accepted as restated in Findings of Fact 19.

5. Accepted as subordinate facts.

6. Accepted in part as restated in Findings of Fact 20. Specifically reject that Respondent and A.S. were "making" out before he began examining her breast in the role as doctor.

7. Reject that Respondent and A.S. were engaged in sexual foreplay before Respondent began examining

A.S. See Findings of Fact 21-23. Reject that Respondent did not attempt to give Ms. Stiles a physical examination.

14. Accept as restated in Findings of Fact 24.

15-17. Accept in part as restated in Findings of Fact 24-31.

Reject. Second and third sentences in paragraph 15 not supported by persuasive evidence. Apology referenced in last sentence of paragraph 16 included Respondent's offer to complete the physical.

1. Accept first sentence as subordinate fact. Second sentence is rejected to extent it weighs the evidence.

2. Reject to extent Respondent attempts to weigh the evidence. Otherwise subordinate.

3. Rejected. See Conclusions of Law.

4. Argumentative. Hearsay only considered to extent it supports and explains competent evidence. See Finding of Fact 15.

5. Reject. Contrary to more persuasive evidence.

6. No cite to record. Accepted as subordinate facts.

7. First sentence accepted in Findings of Fact 45. Reject stated implication regarding the meaning of "impaired." Reject last sentence.

8. Dr. Recinella's testimony is not persuasive to the extent it conflicts with the testimony of Dr. Stein.

COPIES FURNISHED:

William M. Furlow, Esquire Katz, Kutter, et al.

Post Office Box 1877 Tallahassee, Florida 32302-1877

Francesca Plendl, Esquire Agency for Health

Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Marm Harris, Executive Director Agency for Health

Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerome Hoffman, Esquire Agency for Health

Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

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.

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

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

STATE OF FLORIDA BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. DOAH CASE NO.: 96-0793

AHCA CASE NO.: 95-13842 PHILIP WILLIAM LORTZ, M.D., LICENSE NO.: ME0066421

Respondent.

/

FINAL ORDER

THIS CAUSE came before the Board of Medicine (Board) pursuant to Sections

120.569 and 120.57(1), Florida Statutes, on October 4, 1996, in West Palm Beach, Florida, for the purpose of considering the Administrative Law Judge's Recommended Order, Exceptions to the Recommended Order, and Response to Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner was represented by Larry G. McPherson, Jr., Chief Attorney. Respondent was present and represented by William Furlow, Esquire.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

RULINGS ON ORAL OBJECTIONS

Counsel for Respondent objected to Petitioner's filing of responses to Respondent's exceptions to the Recommended Order. However, Rule 59R-1.004(3), Florida Administrative Code, specifically provides for the timely filing of responses to exceptions. Respondent made an argument suggesting that Petitioner's responses were untimely.

Counsel for Respondent also objected to Board counsel making recommendations to the Board with regard to its rulings on exceptions. However, the Board has requested that Board counsel routinely make such recommendations in presenting all exceptions. This is an expected and appropriate part of the statutory role of the Board's legal counsel. Although the Board is not required to abide by such recommendations it does expect to receive them in Board counsel's legal advice.

RULINGS ON EXCEPTIONS

1. Respondent's Exception to the fourth sentence of the Administrative Law Judge's Recommended Finding of Fact number six is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence as set forth in the response of the Petitioner.

   
   

2. Respondent's Exception to the fifth sentence in the Administrative Law Judge's Recommended Finding of Fact number six is rejected by the Board because it is supported by competent substantial evidence in the record.

   
   

3. Respondent's Exception to the last sentence of the Administrative Law Judge's Recommended Finding of Fact number six is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

   
   

4. Respondent's Exception to the last sentence of the Administrative Law Judge's Recommended Finding of Fact number six is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

   
   

5. Respondent's Exception to the second sentence of the Administrative Law Judge's Recommended Finding of Fact number, is rejected by the Board for the reasons set forth in Petitioner's response.

   
   

6. Respondent's Exception to the third sentence of the Administrative Law Judge's Recommended Finding of Fact number seven, is rejected by the Board for the same reasons set forth in the Board's ruling on the previous exception.

   
   

7. Respondent's Exception to the last sentence of the Administrative Law Judge's Recommended Finding of Fact in paragraph 13, is rejected by the Board for the reason set forth in Board's ruling on the previous exception.

   
   

8. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 21, is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence as set forth in the response of the Petitioner to Respondent's first exception.

   
   

9. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 26, is accepted in part. All evidence indicated that the Respondent inserted his penis into A.S.'s mouth. Therefore, the Recommended Finding of Fact is modified to state that ". . . Respondent inserted his penis in A.S.'s mouth.

   
   

10. Respondent's Exception to the last sentence of the Administrative Law Judge's Recommended Finding of Fact number 3O, is rejected by the Board for the reasons set forth in Petitioner's response to the exception.

11. Respondent's Exception to the last sentence of the Administrative Law Judge's Recommended Finding of Fact number 41 is rejected because the Recommended Finding of Fact is supported by competent substantial evidence as set forth in the response of the Petitioner to Respondent's first exception.

    
    

12. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 42 is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

    
    

13. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 43 is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

    
    

14. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 44 is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

    
    

15. Respondent's Exception to the Administrative Law Judge's Finding of Fact number 45 is rejected by the Board because the Recommended Finding of Fact is supported by competent substantial evidence in the record.

    
    

16. Respondent's Exception to the Administrative Law Judge's Recommended Finding of Fact number 46 is rejected as being supported by competent substantial evidence in the record.

    
    

17. Respondent's Exception to the Administrative Law Judge's Recommended Conclusion of Law in paragraph 50, is rejected by the Board.

    
    

18. Respondent's Exception to the Administrative Law Judge's Recommended Conclusion of Law in paragraph 51, is rejected by the Board.

    
    

19. Respondent's Exception to the second and third sentences of the Administrative Law Judge's Recommended Conclusion of Law in paragraph 53, is rejected by the Board.

    
    

20. Respondent's Exception to the Administrative Law Judge's Recommended Conclusion of Law in paragraph 60, is rejected by the Board.

    
    

21. Respondent's Exception to the Administrative Law Judge's Recommended Conclusion of Law in paragraph 62, is rejected by the Board.

    
    

22. Respondent's Exception to the Administrative Law Judge's Recommended Conclusion of Law in paragraph 63, is rejected by the Board. However, the Board also rejects the Administrative Law Judge's Recommended Conclusion of Law in paragraph 63 of the Recommended Order.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein by reference with the modification noted in paragraph 9. of the Board's Rulings on Exceptions.

   
   

2. There is competent substantial evidence to support the findings of fact as amended.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein by reference with the modification set forth in paragraph 22. of the Board's Rulings on Exceptions.

   
   

3. There is competent substantial evidence to support the conclusions of law as amended.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ACCEPTED. WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that Respondent's license to practice medicine in the State of Florida is hereby REVOKED with the provision that the Respondent be entitled to periodically appear before the Board to petition for reinstatement of his medical license pursuant to subsection 458.331(1)(s), Florida Statutes (1995)

This Final Order shall take effect upon being filed with the Clerk of the Agency for Health Care Administration.

DONE AND ORDERED this 30th day of October, 1996.

BOARD OF MEDICINE

M. KATHRYN GARRETT, M.D. CHAIRPERSON

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, IF REVIEW OF THE FINAL AGENCY DECISION WOULD NOT PROVIDE AN ADEQUATE REMEDY. 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 AGENCY FOR HEALTH CARE ADMINISTRATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF At PEAL, 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Philip William Lortz, M.D., 1342 Varnell Drive, Tallahassee, Florida 32699; to William Furlow, Esquire, Post Office Box 1877, Tallahassee, Florida 32301; to Suzanne F. Hood, Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry

G. McPherson, Jr., Chief Attorney, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee, Florida 32308-5403, on or before 5:00 p.m., this 7th day of November, 1996.

Marm Harris

Docket for Case No: 96-000793

Orders for Case No: 96-000793