STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

vs. )

) Case No. 97-0377 ROBERT HUSON HUNSAKER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 6, 7, and 8, 1997, in Miami, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven A. Rothenburg, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Andrew Cotzin, Esquire

Michael Manthei, Esquire Broad and Cassel

Broward Financial Center

500 East Broward Boulevard, Suite 1130 Fort Lauderdale, Florida 33394

STATEMENT OF THE ISSUES

Whether the Respondent, a physician, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

In December 1996, Petitioner entered an emergency order suspending Respondent's license to practice medicine.

On January 10, 1997, Petitioner filed an Administrative Complaint against Respondent based on the same allegations that served as the grounds for the emergency order of suspension. The Administrative Complaint alleged that Respondent engaged in sexual misconduct with three patients as those patients were coming out of anesthesia following plastic surgery. Count One of the Administrative Complaint alleged that Respondent violated the provisions of Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient physician relationship for the purposes of engaging in sexual activity. Count Two alleged that Respondent violated Rule 59R 59.008, Florida Administrative Code, thereby violating the provisions of Section 458.331(1)(x), Florida Statutes. Respondent timely denied the allegations of the Administrative Complaint and requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed.

All patients involved in this proceeding are females.

The three patients identified in the administrative complaint are J. M., P. S., and C. C. By notice dated February 24, 1997, Petitioner filed its notice that it intended to offer the additional testimony of patients L.

P. and A. V. On the first day of the hearing, the Respondent filed an objection to the testimony of patients

L. P. and A. V., contending that their testimony would be inadmissible similar fact evidence. Respondent's motion was denied, and L. P. and A. V. were permitted to testify.

At the formal hearing, Petitioner presented the testimony of L. P., A. V., J. M., P. S., C. C., Suzanne DeRibeaux, and John Kruse, M.D. All of the witnesses referred to by initials were patients of the Respondent. Ms. DeRibeaux was, at the times pertinent to this proceeding, an employee of the Premier Center for Cosmetic Surgery where Respondent was employed. Dr. Kruse testified as an expert witness in the field of anesthesiology.

Petitioner presented one composite exhibit, which was admitted into evidence.

Respondent testified on his own behalf and presented the additional testimony of Leonard Haber, Ph.D., and Ronald Lee Samson, M.D. Dr. Haber testified as an expert witness in the field of psychology. Dr. Samson testified as an expert witness in the field of anesthesiology.

Respondent presented seven exhibits, six of which were

accepted into evidence. The remaining exhibit pertained to a polygraph examination, the results of which were ruled inadmissible.

A transcript of the proceedings has been filed. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and held license number ME0051546. Respondent, a board certified plastic surgeon, was employed by the Premier Center for Cosmetic Surgery, Coconut Grove, Florida, when the events at issue in this proceeding occurred.

   
   

2. At the times pertinent to this proceeding, Respondent was wearing surgical garb, including scrub pants that do not have a fly. Where noted, Respondent was also wearing a lab coat. Respondent was not wearing underwear.

   
   

3. All events at issue in this proceeding occurred in the recovery room at the Premier Center following surgery by the Respondent. The recovery room at the Premier Center is a small room with walls on three sides and a curtained entrance. There are two beds in the recovery room. The bed against the left wall can be tilted up or down, but the one on the right is flat. All of the patients at issue in this proceeding were placed in the bed on the left side of the room with their heads toward the rear wall and their feet toward the curtained entrance. This bed has railings which are raised at all times except when the patient is being moved. The recovery room is adjacent to the operating room. To benefit the patient, the recovery room is dimly lit.

   
   

4. The patients upon whom Respondent performed surgery were administered general endotracheal anesthesia. All patients were administered the following anesthetic agents: Brevital, Anectine (also called Succinylcholine), Forane, Fentanyl, Inapsine (also called Droperidol), Mivacron, and Nitrous Oxide. All patients except J. M. were also administered midazolam (Versed).

5. Prior to surgery, each patient involved in this proceeding signed a standard form that gave her consent to have anesthesia administered and provided certain information about the effects of anesthesia. Among the information provided was the following statement: "Occasionally dreams can occur during or after anesthesia."

   
   

6. The purpose of anesthesia is to render the patient insensible to the surgical procedure. People have been known to dream and can hallucinate under the effects of the anesthetic agents administered to all of the patients. Midazolam (Versed), an anesthetic agent used on all patients except J. M., has been known to cause sexual fantasies in female patients. External stimuli can induce dreams, fantasies, or hallucinations in patients under the influence of the anesthetic agents involved in this proceeding.

   
   

7. At the times pertinent to this proceeding, the Respondent employed a post operative practice of establishing physical contact with a patient while the patient was regaining consciousness following surgery. This practice was applied to male and female patients. This contact usually consisted of holding the patient's hand or touching the patient's arm or shoulder. The purpose of the contact was to reassure and relax the patient. As part of this routine, Respondent spoke to the patient in soft and reassuring tones, asking the patient how he or she felt and telling them that the surgery was successful.

   
   

   PATIENT J. M.

   
   

8. In January 1996, patient J. M., a female born June 1, 1965, met with Respondent at the Premier Center to discuss a breast augmentation procedure. J. M. met again with Respondent in early May 1996 and decided to go forward with the breast augmentation.

   
   

9. J. M. arrived at the Premier Center on May 16, 1996, at approximately 8:00 a.m. for her surgery. She was accompanied by her sister and her boyfriend. J. M. met with Respondent and was prepped for surgery. She was taken to the operating room and administered general endotracheal anesthesia. Respondent performed the surgery on J. M. without incident.

   
   

10. Following surgery, J. M. was taken to the

    recovery room. J. M. was groggy and weak when she began waking from the anesthesia in the recovery room. J. M. testified that she first remembered hearing an unidentified female voice tell her the surgery was over. J. M. thereafter lost consciousness.

    
    

11. J. M. next remembered hearing Respondent's voice, but she did not know how much time elapsed between the time she heard the female voice and Respondent's voice. J. M. testified that she opened her eyes and saw Respondent standing next to the bed. Respondent held her left hand and asked how she was doing. While Respondent was talking to

    J. M., he stroked her hand with his hands.

    
    

12. J. M. testified that Respondent took her left hand, placed his hand on the back of her hand, and drew her hand to his penis, which was covered by his surgical pants. She testified that Respondent squeezed the back of her hand so that her hand squeezed his penis. She testified that this incident lasted twenty or thirty seconds.

    
    

13. J. M. testified that Respondent left the room, but that she did not actually see him leave. J. M. testified that Respondent came back into the recovery room, but she did not see him reenter the room, nor did she know how much time elapsed since the first incident. J. M. testified that when Respondent came to the recovery room the second time, he again placed his hand on the back of her hand and then drew her hand to his exposed penis. He squeezed the back of her hand so that her hand squeezed his exposed penis. J. M. testified that this second incident lasted approximately fifteen seconds. J. M. testified that there were other people in the area of the recovery room and that a nurse came into the recovery room during the second incident. J. M. testified that she did not try to call out or to stop Respondent during either of the two incidents.

    
    

14. J. M. did not look to see what Respondent was doing with her hand during either the first or the second incident. J. Ml's belief that these two incidents occurred are based on her assertion that she knows what a penis feels like.

    
    

15. J. M. sincerely believes that the acts of sexual misconduct she related actually took place.

16. Respondent testified that, consistent with his practice, he held J. Ml's hand as she was in the recovery room and asked how she was doing. He testified that he at no time placed her hand against his penis.

    
    

17. In resolving the conflict in the evidence, the undersigned has considered that the anesthetic agents that had been administered to J. M. impaired her senses, including her tactile sense, and can cause hallucinations. Most patients coming out of anesthesia are very cold, to the point that they shiver. J. M. never looked to see what Respondent was doing with her hand, although she believed she could have done so. There was an IV in J. Ml's left arm and a rail between where she was lying in the bed and where Respondent would have been standing. These elements make J. Ml's allegations even more improbable.

    
    

18. J. M. returned to visit Respondent for follow up, but she did not complain to him or to anyone else at the Premier Center. J. M. became uncomfortable with Respondent and went to Dr. Joel Roskind for a follow up visit. Dr. Roskind noted that J. M. was upset and

    uncomfortable with Respondent and that she related that she may have been fondled by him. J. M. first complained to the Petitioner some four months after the alleged events, after she had hired a civil lawyer to file suit against Respondent.

    
    

19. In evaluating the evidence, it is concluded that

    J. M. was too impaired at the time these alleged acts occurred for her testimony to clearly and convincingly establish that Respondent engaged in sexual misconduct with

    J. M. as alleged by Petitioner.

    
    

    PATIENT P. S.

    
    

20. P. S. is a female born April 21, 1971. At the times pertinent to this proceeding, P. S. was a nurse employed by the Premier Center. On May 24, 1996, Respondent performed cosmetic surgery on P. S. commonly referred to as a liposuction and a mini tummy tuck.

    
    

21. P. S. was duly prepped and administered general anesthesia. In addition to the anesthetic agents that were administered to J. M., P. S. was also given midazolam (also known as Versed). Respondent performed the surgery on P.

    S. without incident.

    
    

22. Following surgery, P. S. was taken to the recovery room. P. S. testified that while she was regaining consciousness, Respondent placed his penis in her hand and manipulated her hand to stroke his penis. P. S. testified that she was very cold coming out of surgery. She testified that she looked toward her hand but that she was not sufficiently alert to determine visually whether Respondent had his penis in her hand or whether he was merely holding her hand with his hand or hands. During this alleged event, P. S. made no effort to cry out or to otherwise resist the Respondent.

    
    

23. P. S. testified that she initially believed that she had dreamed that Respondent placed his penis in her hand, but that she wondered whether the event actually happened. That she believed that what she testified occurred was a dream was evidenced by the fact that she told her sisters and coworkers that she had experienced a dream; she had Respondent perform additional, elective surgery, and she continued to work with Respondent at the Premier Center. P. S. formed the opinion that the incident actually happened after she heard that A. V., another female patient at the Premier Center, had dreamed that Respondent placed her hand on his penis when she was coming out of anesthesia.5 It was not until November 1996, when Petitioner's investigator questioned her in connection with the J. M. complaint, that P. S. first asserted any misconduct had actually occurred.

    
    

24. Respondent denied that he engaged in sexual misconduct with P. S.

    
    

25. For many of the same reasons that J. Ml's testimony was found not to be convincing, it is found that the testimony of P. S. is insufficient to establish by the clear and convincing standard that Respondent engaged in sexual misconduct with P. S. P. S.'s senses were substantially impaired at the time she believed that Respondent placed his penis in her hand. She was very cold and was so impaired from the anesthesia that she could not see whether there was a hand or a penis in her hand. In addition, P. S. testified that she was lying in the middle of the recovery room bed with her arms by her side. The evidence established that Respondent would have had to have a penis of 12 to 15 inches in length to be able to place his penis in her hand while she was in that position.

    Based on Respondent's uncontroverted testimony as to the length of

    his penis, it is found that it is not physically possible for him to have placed his penis in her hand as P. S. described.

    
    

    PATIENT C. C.

    
    

26. Patient C. C. is a female born January 20, 1967. Respondent performed breast augmentation surgery on patient

    C. C. on July 8, 1996. C. C. was placed under general anesthesia for the surgery and was taken to the recovery room following surgery.

    
    

27. Susan DeRibeaux is an employee of the Premier Center. Ms. DeRibeaux testified that she observed Respondent by C. C.'s bed in the recovery room while C. C. was still unconscious. She observed Respondent by peeking through the curtains that lead into the recovery room. She did this because of rumors of allegations of sexual misconduct against Respondent.

    
    

28. Ms. DeRibeaux testified that the Respondent was standing so that he could not see her peeking through the curtains. The room was dark and she merely glanced into the room. She testified that she saw Respondent draw a flesh colored cylindrical object away from the patient and toward his midsection. Ms. DeRibeaux could not testify that this flesh colored cylindrical object was the Respondent's penis. In its Administrative Complaint, Petitioner alleged that an employee of the Premier Center (Ms. DeRibeaux) had witnessed Respondent use C. Cl's hands to stroke his penis. The Administrative Complaint also alleged that Respondent performed sexual acts with C. C. The evidence in this proceeding failed to establish those factual allegations. Ms. DeRibeaux did not see Respondent use C. C.'s hands to stroke his penis and she was unable to testify that she saw his exposed penis.

    
    

    THE PSYCHOLOGICAL EVALUATION

    
    

29. Dr. Leonard Haber, a forensic psychologist, administered a battery of psychological tests to Respondent and interviewed him over a period of three days. Dr. Haber found that Respondent exhibited no signs of any deviant sexual pathology and that he was mentally and emotionally fit to practice medicine.

    
    

30. Prior to the emergency suspension of his license,

    Respondent had practiced medicine for 15 years without any complaint of sexual or other misconduct.

    
    

31. Respondent emphatically denied that he engaged in sexual misconduct with any of his patients. Respondent's testimony, including his denial of any sexual misconduct, is found to be credible.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

33. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlinqton, 510 So. 2d 292 (Flat 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Flat 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Flat 4th DCA 1983).

    
    

34. Section 458.331(2), Florida Statutes, provides that the Board of medicine is empowered to discipline the license of a physician who violates Section 458.331(1). In this proceeding, Respondent was charged, in Count One of the Administrative Complaint, with violating the provisions of Section 458.331(1)(j), Florida Statutes, and, in Count Two, with violating the provisions of Section 458.331(1)(x), Florida Statutes, based on his alleged violation of Rule 59R

    59.008, Florida Administrative Code.

    
    

35. Section 458.331(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (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.

    
    

    * * *

    
    

    (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

    
    

36. The undersigned could not locate Rule 59R 59.008, Florida Administrative Code. Presumably, Petitioner intends to refer to Rule 59R

    9.008, Florida Administrative Code, which prohibits sexual misconduct by a physician with a patient.

    
    

37. Petitioner failed to prove by clear and convincing evidence that Respondent engaged in sexual misconduct with any of the patients involved in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that dismisses the Administrative Complaint.

DONE AND ORDERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida.

_

CLAUDE B. ARRINGTON

Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 23rd day of July, 1997.

ENDNOTES

1/ Pursuant to Chapter 96 403, Laws of Florida, effective July 1, 1997, the responsibility to regulate the practice of medicine in Florida was transferred from the Agency for Health Care Administration to the Department of Health.

The style of this proceeding has been amended to reflect that change.

2/ Respondent's license to practice medicine was suspended by the Board of Medicine by order dated December 23, 1996.

3/ Respondent testified, credibly, that many surgeons do not wear underwear when operating. Respondent testified that he did not wear underwear when operating because of the heat in the operating room and because blood or other body fluids can soak through the surgical garb, thereby ruining the underwear.

4/ The testimony of the Petitioner's expert witness that it would be highly improbable that there would be four separate patients who had somewhat similar dreams, fantasies, or hallucinations, has been duly considered.

This opinion was based on the expert's personal experience without benefit of any research, and does not substitute for clear and convincing evidence of sexual misconduct.

While it is true that such experiences are rare, Respondent presented expert testimony supported by medical literature that supports his contention that dreams, fantasies, or hallucinations can be triggered in patients under the influence of anesthesia by outside stimuli.

5/ A. V. testified that as she was coming out of anesthesia she thought that Respondent had placed his penis in her hand. A. V. also testified that she looked at her hand and that what she thought was Respondent's penis was only his hand holding her hand. P. S. testified that she was not aware that A. V. had seen that it was Respondent's hand in her hand and not his penis.

6/ Another female patient, L. P., testified that Respondent placed his penis in her hand while she was coming out of anesthesia. Like P. S., L. P. was in the middle of the bed in a position where Respondent could not have physically done what she claimed he did.

7/ The credibility of Ms. DeRibeaux's testimony is called into question for several reasons. Because Respondent was wearing a lab coat over scrub pants at the time of this incident, it is doubtful that she was in a position to see Respondent's penis even if he had been exposed. The scrub pants do not have a zipper and there was no evidence that Respondent had his pants pulled down. Because of the rumors that were circulating about the Respondent, Ms.

DeRibeaux, at the insistence of her employer, broke into Respondent's locked desk and took a copy of J. Ml's complaint, which was, at that time, confidential. Ms.

DeRibeaux was predisposed to believe that Respondent was engaged in misconduct when she peeked through the curtains

leading into the recovery room. Ms. DeRibeaux did not tell

C. C. or anyone at the Premier Center what she thought she saw. The first person to whom she related this observation was the investigator who came to the Premier Center to investigate the complaint J. M. filed in September 1996. The burden of proof in this matter is not on the Respondent. However, the Respondent credibly denied that he engaged in sexual misconduct with this patient and established that the object Ms. DeRibeaux likely saw was a six

inch, flesh colored Ace bandage roll that is used to wrap patients prior to their discharge.

COPIES FURNISHED:

Michael R. Manthei, Esquire Broad and Cassel

Broward Financial Center, Suite 1130

500 East Broward Boulevard

Fort Lauderdale, Florida 33394

Steven Rothenburg, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000377

Orders for Case No: 97-000377