A formal administrative hearing in this case was held on August 11 and 12, 2009, in St. Petersburg, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Shirley L. Bates, Esquire
Ephraim D. Livingston, Esquire Department of Health
For Respondent: Kory J. Ickler, Esquire
Brian A. Newman, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A.
The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
By Administrative Complaint dated May 28, 2008, the Department of Health (Petitioner) alleged that Kayode Ezekiel Sotonwa, M.D. (Respondent), committed sexual misconduct with patients, thereby violating Subsections 456.063(1), 456.072(1)(v), and 458.331(1)(j), Florida Statutes (2006), and Florida Administrative Code Rule 64B8-9.008(2)(a). The Respondent disputed the allegations and requested a formal administrative hearing. By letter dated June 4, 2008, the Petitioner forwarded the matter to the Division of Administrative Hearings.
Pursuant to the Petitioner's Motion for Expedited Final Hearing filed on June 6, 2008, the hearing was initially scheduled for July 24 and 25, 2008. On July 14, 2008, the Petitioner moved to place the case in abeyance, pending the resolution of related legal proceedings. Without objection, the case was placed in abeyance where it remained until May 27, 2009, when the parties filed a Joint Status Report requesting that the hearing be rescheduled. By Notice of Hearing dated
2009. The case was transferred to the undersigned Administrative Law Judge on June 18, 2009.
At the hearing, the Petitioner presented the testimony of four witnesses and had Exhibit 1 admitted into evidence. The Respondent testified on his own behalf and presented the testimony of three additional witnesses. Joint Exhibits 1 through 3 were admitted into evidence.
The Transcript of the hearing was filed on August 27, 2009.
Both parties filed Proposed Recommended Orders.
The Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2006).
At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number ME 90545, and certified by the American Board of Internal Medicine.
Beginning in 2005, the Respondent owned, and practiced medicine at, the Jude Medical Clinic, 2700 East Bay Drive, Largo, Florida. His wife worked at the clinic as the office manager.
The patients specifically referenced herein were clients of Pinellas County Health Services (CHS), an agency that provided access to medical care for low-income residents. CHS
apparently paid for some, but not all, medical services and tests. CHS clients selected primary care physicians from a referral list maintained by CHS. The Respondent was a primary care physician who participated in the referral program and accepted CHS clients as patients.
Prior to opening the clinic, the Respondent practiced medicine at the Bay Pines VA Medical Center (Bay Pines) in
St. Petersburg, Florida, and, for a period of time, he continued to practice at both. The Respondent employed a female nurse at the clinic, with whom he also worked at Bay Pines.
Routine practice at Bay Pines required a female to be present in the exam room when a male physician performed a medical exam on a female patient.
The Respondent adopted the same practice for the clinic's female patients. Clinic patients were escorted into an exam room by either the nurse or the Respondent's wife. The other female would leave the room to address other responsibilities while the Respondent conducted the medical history interview, recording the information in his notes. The nurse generally recorded the patient's vital signs prior to the interview, although the Respondent did so when the nurse was absent from work. After the interview was completed, the nurse or the Respondent's wife would enter the room and remain during the physical exam.
Patient J.R.
On August 9, 2007, Patient J.R. presented to the Respondent's office for her initial visit with complaints of neck and back pain.
The Respondent interviewed Patient J.R. and conducted a complete medical exam on August 9, 2007. There was no evidence that the exam was unwarranted. The interview and exam were documented by medical records admitted into evidence at the hearing. The exam included a breast exam. The medical records document the size and location of a lesion on her left breast. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient.
Prior to the exam, the clinic's nurse escorted the patient into the exam room and recorded vital signs. The clinic's nurse was present in the room during the exam.
At one point during the exam, the Respondent's wife also entered the exam room.
After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for medication, which the patient filled. He also scheduled a follow-up appointment, which the patient did not keep.
At the time of the initial visit, the patient was taking a significant amount of medication for chronic pain, and she requested that the Respondent provide a prescription for pain medication. He declined to comply with her request.
Patient J.R. testified at the hearing that the Respondent fondled her breasts for approximately 15 minutes with no one else present in the exam room at the time. She also testified that the Respondent performed no physical exam during the office visit. The patient's testimony was contrary to the greater weight of the evidence and has not been credited.
Patient W.S.
On October 15, 2007, Patient W.S. presented to the Respondent's office for her initial visit with complaints of back and leg pain. The patient also suffered from Crohn's Disease and had burns to the skin on the backs of her thighs. She attributed the burns to use of a heating pad. The patient was taking various prescription medications, including pain relievers, at the time of the office visit.
The Respondent interviewed Patient W.S. and conducted a complete medical exam, including a neurological exam, on October 15, 2007. There was no evidence that the exam was unwarranted or otherwise inappropriate. The interview and exam were documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were
not created contemporaneously with the physical exam of the patient.
Because the clinic's nurse was absent on October 15, the Respondent's wife entered the room at the time of the physical exam and was present throughout the exam. The Respondent took the patient's vital signs. Upon the conclusion of the exam, the Respondent left the room prior to both the patient and his wife.
After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for antibiotic medication for the burns to her thighs and a prescription for a muscle relaxant to address her pain. He also referred her to a gastroenterologist for treatment of the Crohn's Disease.
The patient completed the MRI test and filled the medication prescriptions. She also saw a gastroenterologist for her Crohn's Disease, although not the one to whom she was referred by the Respondent.
At the hearing, Patient W.S. testified that the Respondent examined her spine by rubbing his hand down her back, during which she emitted a sound of pain, and that the Respondent said, "Don't do that, it makes me think you are horny." She also testified that the Respondent used excessive
force when striking her knees with a reflex instrument and said "See what happens when you piss your doctor off." The testimony was not supported by the greater weight of the evidence, and it has not been credited.
Allegations related to improper use of a "business or index card" during a neurological exam were withdrawn prior to the hearing.
Patient E.S.
On February 25, 2008, Patient E.S. presented to the Respondent's office for a follow-up to an initial visit on January 16, 2008.
Upon arriving at the clinic for the follow-up, she complained of chest pain and "heaviness" and was immediately taken to an exam room by the nurse.
The nurse took the patient's vital signs and retrieved an EKG machine. The nurse placed the EKG machine leads on the patient's chest and performed the test. The test results were within normal limits.
The Respondent was not present in the room at the time of the EKG test. After completing the test, the nurse located the Respondent in his office and reported the information to him, and both the nurse and the Respondent went to the exam room. The Respondent advised the patient that the EKG test was normal.
The Respondent then discussed the results of lab tests that had been performed after the January appointment. The patient's tests results reported the presence of a urinary tract infection (UTI) and specified that the identified bacteria "may represent colonizers from external and internal genitalia."
Based upon the reported source of the bacteria identified as responsible for the UTI, the Respondent discussed sanitary cleansing practices with the patient during the exam.
At the conclusion of the appointment, the Respondent referred the patient for cardiac stress testing, prescribed an antibiotic for the UTI, and ordered additional lab tests. The Respondent left the exam room prior to both the patient and the nurse. The nurse removed the EKG leads from the patient's chest.
The patient filled the prescription and went to the lab as directed by the Respondent.
The patient's office visit on February 25, 2008, was documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. There was no evidence that the Respondent's interaction with Patient E.S. was inappropriate or unwarranted based upon the information available to the Respondent from test
results or obtained during the patient's initial clinic appointment.
At the hearing, Patient E.S. testified that the Respondent performed the EKG and that no one else was present at the time. The testimony was contrary to the greater weight of the evidence and has not been credited.
Patient E.S. testified that after telling her about the UTI, he told her to "lay off the sex." There was no credible evidence presented that providing such advice to a patient with an active UTI was improper or constituted sexual misconduct.
Patient E.S. also testified that the Respondent pulled down her underwear, and, using an ungloved finger, touched her clitoris and inserted his finger into her vagina, while identifying each. The testimony was contrary to the greater weight of the evidence and has not been credited.
The Administrative Complaint alleged that, at the time of the initial visit, the Respondent told the patient she needed a pap smear test and that one could be provided for her payment of $50 "under the table." At the hearing, the Respondent denied making the statement, but testified without contradiction that the CHS did not pay for pap smear tests and that patients were required to pay the expense of the test. There was no evidence
that such a statement, even assuming it were made, constituted sexual misconduct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
The Respondent is the state agency charged with regulating the practice of medicine. § 20.43 and Chapters 456 and 458, Fla. Stat. (2006).
Subsection 456.063(1), Florida Statutes (2006), provides as follows:
Sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited.
Subsection 456.072(1)(v), Florida Statutes (2006), provides as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(v) Engaging or attempting to engage in sexual misconduct as defined and prohibited in s. 456.063(1).
Subsection 458.331(1)(j), Florida Statutes (2006), provides as follows:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(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 or her physician.
Florida Administrative Code Rule 64B8-9.008(2)(a) provides as follows:
For purposes of this rule, sexual misconduct between a physician and a patient includes, but it is not limited to:
Sexual behavior or involvement with a patient including verbal or physical behavior which
May reasonably be interpreted as romantic involvement with a patient regardless of whether such involvement occurs in the professional setting or outside of it;
May reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or
May reasonably be interpreted by the patient as being sexual.
The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Clear and convincing evidence is that which is credible, precise, explicit, and lacking confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the burden has not been met.
The Administrative Complaint alleged that the Respondent violated the statutes referenced herein by "fondling Patient J.R.'s breasts and/or her nipples for approximately fifteen minutes despite the patient being at the Respondent's office only for an MRI referral, and/or by looking at her in a sexual manner while doing so." The evidence was insufficient to establish that the Respondent "fondled" the patient's breast and/or nipples for "approximately fifteen minutes."
Further, there was no evidence that the Respondent's medical exams were inappropriate. Subsection 458.305(3), Florida Statutes (2006), defines the "practice of medicine" as "the diagnosis, treatment, operation, or prescription for any
human disease, pain, injury, deformity, or other physical or mental condition." There was no evidence that the Respondent acted inappropriately in performing a breast exam of
Patient J.R. "despite the patient being at the Respondent's office only for an MRI referral" prior to determining a diagnosis and appropriate course of treatment.
As to Patient W.S., the Administrative Complaint alleged that the Respondent violated the statutes referenced herein as follows:
By rubbing his hand down the spine of Patient W.S.'s back and saying "Don't do that, it makes me think you are horny," after the patient made an audible sound of pain; and/or by taking what appeared to be a business or index card and rubbing both of Patient W.S.'s inner thighs with it, approaching her vaginal area, and/or by telling Patient W.S. he wanted her to remove her clothes so that he could examine the area around her anus with the same card; and/or by becoming angry and/or upset after Patient W.S. declined to undress for an anal exam and by stating, "See what happens when you piss your doctor off?" and then abruptly ending the exam and leaving the room.
The evidence was insufficient to establish that the Respondent made the statements alleged in the complaint.
The allegations related to the inappropriate use of a business or index card were withdrawn by the Petitioner prior to the hearing.
The evidence was insufficient to establish that the Respondent left the room and terminated the exam in anger or irritation at the patient.
As to Patient E.S., the Administrative Complaint alleged that the Respondent violated the statutes referenced herein as follows:
By telling Patient E.S. that she needed a pap smear and that he could provide one for
$50 dollars "under the table," when Patient
E.S. presented to the Respondent on or about February 4, 2008, for a check up for menopause, with specific complaints of heaviness in her chest, recent pneumonia, the need for a lung x-ray, and to provide blood and urine samples for testing; and/or by telling Patient E.S. to "lay off the sex," after telling her she had a urinary tract infection; and/or by pulling Patient E.S.'s panties down, placing an ungloved finger on Patient E.S.'s clitoris and telling her "this is your clit," and then inserting his ungloved finger into her vagina and saying, "this is your vagina."
There was no credible evidence that the allegations related to the cost of a pap smear test constitute sexual misconduct. There was no evidence that such a statement was inappropriate in any manner.
The evidence failed to establish that the Respondent's discussion with the patient related to the UTI constituted "sexual misconduct" or was otherwise inappropriate. There was no credible evidence that he touched her internal or external genitalia with an ungloved finger.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint filed against Kayode Ezekiel Sotonwa, M.D.
DONE AND ENTERED this 25th day of September, 2009, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2009.
Shirley L. Bates, Esquire Ephraim D. Livingston, Esquire Department of Health
Kory J. Ickler, Esquire Brian A. Newman, Esquire
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
Josefina M. Tamayo, General Counsel Department of Health
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.
