Findings Of Fact On or about May 6, 1993, the Department of Professional Regulation, Board of Medicine (predecessor agency to the Agency for Health Care Administration, Board of Medicine) received a complaint from patient A. L. alleging that the Petitioner had attempted inappropriate sexual contact with the patient during an examination. The complaint was assigned to a DPR investigator who notified the Petitioner that the complaint had been received. The DPR investigator interviewed the patient, obtained the patient's medical records from the Petitioner, and obtained a letter apparently written on the day of the incident from the patient confirming the nature of the complaint. The investigator also obtained information regarding the Petitioner's licensure and confirmation from the patient that he would appear to testify at a hearing if an Administrative Complaint was filed. During the interview and by letter, the patient alleged that during the dermatological examination, the Petitioner had asked the patient if he was single and did he "play" with himself. The patient further alleged that the Petitioner requested that the patient masturbate while the Petitioner watched. The DPR investigator compiled a report including the complete investigative file, relevant discovery, the agency's recommendation and memoranda, and the proposed administrative complaint. The report also advised that, allegedly according to agency legal counsel, other administrative complaints were pending against the Petitioner. The report was forwarded to the members of the Probable Cause Panel (PCP) prior to their meeting on September 14, 1993. The PCP received and reviewed the materials. Present at the September 14 meeting were panel members Edward A. Dauer, M.D., Robert Katims, M.D., and Maribel C. Diblan. Also present were legal counsel and administrative personnel. Upon review of the materials, the PCP unanimously determined that probable cause existed for the filing of the Administrative Complaint. Probable cause was found that the Petitioner violated Section 458.331(1)(j) and (x), Florida Statutes. On September 17, 1993, the agency filed the Administrative Complaint, AHCA Case No. 93-8352, subsequently DOAH Case No. 93-6252. On April 19, 1994, the case was heard in formal hearing before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. A Recommended Order was issued, finding that the testimony of the patient lacked credibility and recommending that the Administrative Complaint be dismissed. On August 15, 1994, the agency issued a Final Order adopting the recommended order issued by the hearing officer and dismissing the Administrative Complaint. The Petitioner asserts that the agency investigation was flawed because no dermatological expert was sought to review the case. There is no credible evidence that an expert is required to review allegations of sexual misconduct such as those charged in the administrative complaint filed against Dr. Lattanand. The Petitioner further asserts that alleged inconsistencies in addresses provided by the patient to various entities warranted further review by the agency and apparently suggest a lack of credibility on the complainant's part. Review of the alleged address inconsistencies indicates only that the complainant maintained more than one address. The implication related to credibility is not supported by evidence. Based on the prehearing stipulation of the parties, the following Findings of Fact are made: The Petitioner qualifies as a small business party as defined by section 57.111, Florida Statutes. The Petitioner is the prevailing party. The amount of fees claimed by the Petitioner are reasonable. Special circumstances do not exist which would make an award of costs and fees unjust.
The Issue Whether Respondent is guilty of violating Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Jeffrey L. Katzell, M.D. (Dr. Katzell), is and has been at all material times to this proceeding a physician, licensed in the State of Florida by the Petitioner, Agency for Health Care Administration (AHCA). Dr. Katzell was issued license number ME 0050379. Dr. Katzell is a board certified orthopedic surgeon. He entered the private practice of orthopedic surgery in Palm Beach County in 1987. Prior to the allegations which are the subject of this proceeding, Dr. Katzell has never been the subject of a medical malpractice complaint or any form of disciplinary action by the Board of Medicine in any state. PATIENT T.B. T.B. is the female patient referred to in Counts 1-3 of DOAH Case No. 93-7122, DPR Case No. 92-3917. From December 12, 1991, through February 6, 1992, Dr. Katzell treated T.B. who was at that time 24 years old. Her chief complaints were of pain in her back, neck, wrist and chest as a result of trying to catch herself from falling while walking down some stairs. She complained of chest pain that felt like a band around her chest. She had pain when breathing. On the December 12, 1991, visit, a female medical assistant asked T.B. to disrobe and put on an examining gown which opened down the back. T.B. wore her panties under the gown and no bra. Dr. Katzell examined T.B. in the presence of a female medical assistant. As part of his examination, he palpated T.B.'s sternum and examined her ribs by placing his left hand through the armhole of the examining gown and his right hand on her back. Dr. Katzell moved the fingers of his left hand in different locations on her chest and asked T.B. if it hurt in those areas. During the examination, the palm of Dr. Katzell's hand touched the nipple of T.B.'s breast. It is possible for a physician to examine a female patient's sternum and ribs without touching her nipples but it is also possible that a physician could accidently touch the nipple of the breast while performing such an examination. It was appropriate for Dr. Katzell to examine T.B.'s sternum and ribs, given the nature of her complaints. It was not below the standard of care nor does it constitute sexual activity or sexual misconduct for an orthopedic surgeon to have physical contact with the breast in the manner described by T.B. during the course of performing an examination of the chest. On January 23, 1992, T.B. returned to Dr. Katzell for a follow-up examination. She was complaining of pain in the area of the left sciatic joint which is located in the buttock. For the examination she was wearing a T-Shirt, panties, and a bra underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her a cortisone shot in her buttock. She removed her panties. Dr. Katzell gave her an injection of cortisone in her buttock while she lay face down on the examining table. He left the room for a short period of time. When he returned, he rubbed the medication in to diffuse the medicine. Then he asked her to turn over and he began to manipulate her legs to see if the shot had worked. The examination includes flexing and extending the legs, as well as abduction (spread eagle) and adduction (legs crossed). T.B. did not have any panties on while he was putting her legs in different positions and her genital area was exposed. It was appropriate for Dr. Katzell to check T.B.'s range of motion, but it was inappropriate for him to perform the examination while the lower half of her body, including her genitalia were exposed. To have performed the range of motion test while the patient's genitalia was exposed was below the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. On February 6, 1992, T.B. returned for a follow up visit, continuing to complain of low back pain related to the sciatic joint. Again T.B. was asked to disrobe and put on an examining gown. She wore two tank tops, a bra, and panties underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her another cortisone shot. She removed her panties. Another man was present when Dr. Katzell gave T.B. the injection. The man and Dr. Katzell left the examining room after the injection was administered. Dr. Katzell returned a short time later and told T.B. that he probably needed to manipulate the shot into the buttock. He opened the back of her gown and started to rub her buttock with both hands. Cortisone is a non-absorbable medication. The standard of care for orthopedic surgery recognizes that it is helpful and appropriate to massage the area of the injection to diffuse the medication. After Dr. Katzell massaged T.B.'s buttocks, he took his right hand and pulled her leg open. Dr. Katzell then made a sweeping motion with his hand from her vagina to her rectum. T.B. jumped to the side and pulled the gown closed. She asked him why he was giving her a shot in the buttock when it was her hip that hurt. Dr. Katzell told her that if she did not like it that she could come back for more. T.B. started to cry. The touching of T.B.'s genitalia from her vagina to her rectum was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching was sexual misconduct in that the touching was a violation of the patient-physician relationship through which Dr. Katzell intentionally touched the vagina of T.B. and such touching was outside the scope of generally accepted treatment and examination of the patient. T.B. left Dr. Katzell's office and went to her workers' compensation attorney complaining of her treatment from the doctor. T.B. told her husband what had happened and they called the police. As a result of the above-described events T.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28364-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.B. and the Court adjudicated Dr. Katzell guilty. T.B. has filed a civil action for monetary damages against Dr. Katzell. PATIENT A.F. A.F. is the female patient referred to in Counts 4-6 of the Administrative Complaint in DOAH Case No. 93-7122, DPR Case No. 92-3917. A.F. was involved in a head on automobile accident on August 30, 1991. At that time she was 30 years old. After the accident she was treated by Dr. Michael Nathanson, a chiropractor. He referred her to Dr. Katzell for a complete orthopedic examination. Dr. Katzell first saw A.F. on October 9, 1991. She was complaining of pain in her sternum, sciatic pain, neck pain, and pain in the middle and low portion of her back. A.F. told Dr. Katzell that she had severe pain in sternum but that she did not have any bruises on her breasts. Her chiropractor had advised her that she had cracked two ribs. During Dr. Katzell's first examination of A.F. no other persons were present in the room. A.F. was wearing an examining gown, panties, and a bra. While A.F. was standing, Dr. Katzell pulled down her examining gown and removed her bra straps from her shoulder, exposing her sternum and breasts. She tried to pull the gown back up but he pushed it back down. Given the nature of A.F.'s complaints relating to her sternum and ribs, it was appropriate for Dr. Katzell to examine the sternum, to palpate the costochondral junction where the ribs meet the sternum, and to palpate the ribs. Dr. Katzell palpated the ribs and the costochondral junction during his examination. While he was examining her, his fingers did come in contact with A.F.'s breasts. The standard of care is not violated when a physician's hand comes in contact with the breast during an examination of the anterior chest such as was performed by Dr. Katzell. By touching A.F.'s breasts, Dr. Katzell did not engage in sexual activity. After her visit with Dr. Katzell, A.F. told Dr. Nathanson that she did not think that Dr. Katzell's examination had been appropriate. On October 29, 1991, A.F. returned to Dr. Katzell for a follow-up visit. She was complaining of hip pain and sciatic pain, with a pain in the crease of her leg where the elastic of her panties would be. She put on the examining robe and left on her panties and bra. No attendant was present during the examination. A.F. was standing while Dr. Katzell was examining her. He put his thumbs underneath her panties and palpated the inguinal crease (where the elastic of the panties would be located). As he was examining her, he put his right thumb in the crease in the vaginal area across her clitoris and went down underneath in the vaginal area. She told him that it did not hurt there and he went back up across the same area. Dr. Katzell's touching of A.F.'s clitoris and her vaginal area was unjustified and inappropriate. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. The touching was also sexual misconduct. On November 11, 1991, A.F. returned to see Dr. Katzell for the results of her MRI test. Dr. Katzell asked her twice to put on the examining robe but she refused to do so. A.F. called Petitioner and filed a complaint against Dr. Katzell. Later A.F. instituted a civil action against Dr. Katzell. Additionally, as a result of the above-described events A.F. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number 92-28366- MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of A.F. and the Court adjudicated the Respondent guilty. PATIENT BB Patient B.B. is the female patient referred to in Counts 7-9 of the Administrative Complaint in DOAH Case No. 93-7122 and DPR Case No. 92-3917. B.B. was a nurse in a hospital where Dr. Katzell performed surgery. In the summer of 1990, she began experiencing pain in her left hip, radiating to her left knee and foot and causing her to limp. Dr. Katzell noticed her limp and told her that a cortisone shot could help. She agreed to the injection. They went to the cast room in the emergency room of the hospital. Dr. Katzell asked her to put on an examining gown while he stepped out of the room. She complied. Dr. Katzell gave B.B. an injection and told her that it was not necessary for him to see her in his office. He did not charge B.B. for the treatment. It is not unusual for physicians to perform courtesy examinations for the nurses. B.B. experienced some minimal relief, but the pain returned in a couple of weeks. Dr. Katzell suggested another injection. They went to the cast room where the first examination had taken place. On the way to the cast room, B.B. told Dr. Katzell that she was also experiencing pain in her tailbone that resulted from an accident she had while giving childbirth years before. He told her that he would need to do a vaginal examination to determine where to place the shot in her tailbone. He performed a vaginal examination by inserting his fingers into her vagina. He did not perform a rectal examination. No one else was present during Dr. Katzell's examination of B.B. Vaginal examinations are not used in the diagnosis or treatment of back pain, coccydynia (pain in the tailbone) or to locate a favorable injection site for the treatment of these conditions. The giving of the vaginal examination fell below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The vaginal examination also constituted sexual misconduct. B.B. wrote a letter to Petitioner concerning Dr. Katzell's examination but she was not specific about the nature of the complaint. She was later contacted by one of Petitioner's investigators. As a result of the above-described events B.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number, 92-12233-CF. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of B.B. and the Court adjudicated Dr. Katzell guilty. PATIENT D.B. Patient D.B. is the female patient referred to in Counts 1-3 of the Administrative Complaint in DOAH Case No. 93-7123 and DPR Case No. 92-14422. D.B. first saw Dr. Katzell on May 16, 1991. She was complaining of instability with her left knee. At the time she was 24 years old. D.B. had had a patella tendon anterior cruciate ligament reconstruction in 1986. She saw Dr. Katzell again on June 13, 1991 and July 9, 1991. Dr. Katzell recommended arthroscopic anterior cruciate ligament reconstruction on her left knee because of a rupture of the anterior cruciate ligament. On July 15, 1991, D.B. was admitted to J.F.K. Medical Center, where Dr. Katzell performed surgery on her left knee. After the surgery, D.B.'s left leg was bandaged from the groin area to half way down her calf. On one of his hospital post-operative visits, Dr. Katzell came to check D.B.'s dressing. D.B. was wearing a hospital gown and no underpants, her left leg was in the air in a continuous motion machine, and she was on a bedpan when Dr. Katzell came into her room. While Dr. Katzell was checking her dressings, he rubbed his hand down her crotch. There was no medical necessity for rubbing across the crotch area of D.B. when Dr. Katzell changed her dressing while she was in the hospital. D.B., who was accompanied by her mother, saw Dr. Katzell in his office on July 26, 1991. He removed the staples. D.B. next saw Dr. Katzell on August 16, 1991. She put on an examination gown and kept on her T-shirt, bra, and panties underneath the gown. Dr. Katzell performed a range of motion test, which required D.B. to lie on the examining table, bend the leg at the knee while the leg was raised in the air, and gradually lower the leg. During the examination, Dr. Katzell placed his hand between her legs and slid it down the middle of the vaginal area from top to bottom. Dr. Katzell next saw D.B. in his office on September 13, 1991. D.B. was dressed in an examination gown with a shirt, panties and bra underneath the gown. Dr. Katzell performed another range of motion test and again touched her in her vaginal area, down the middle of her crotch from top to bottom. On October 11, 18, November 19, and December 19, 1991, D.B. returned for follow-up visits. On each visit, D.B. removed her shorts and put on an examination gown. During each visit Dr. Katzell measured her leg near the groin area for atrophy as she stood up with her back to him as he was sitting on a stool. While he was measuring during each visit, he briefly rubbed his hand between her legs in her crotch. On January 17, 1992, D.B. went to see Dr. Katzell at his office. She was wearing bike shorts and a sweater. She had intentionally worn bike shorts because she felt that the doctor could measure over the shorts and there would be no necessity for removing her shorts. The bike shorts had a built-in pantie so D.B. did not wear any additional underpants. Dr. Katzell asked her to remove the bike shorts and the sweater and put on a gown, explaining that he could not measure over the spandex of the bike shorts. It would not have been medically appropriate to measure the leg over the spandex because the bike shorts compress the muscles of the upper leg. D.B. removed her shorts and sweater and put on the gown, which left her wearing only the gown and a bra. Dr. Katzell performed a range of motion test and measured her leg for atrophy. When he was measuring her leg, he touched her in her vaginal area as he had done previously. There was no medical necessity that required Dr. Katzell to touch D.B. in her vaginal area while he was performing range of motion tests and measuring her leg for atrophy. The touching of D.B. in her crotch while she was in the hospital and during her subsequent office visits was inappropriate and fell below the level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constituted sexual misconduct. As a result of the above-described events, D.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of D.B. and the Court adjudicated Dr. Katzell guilty. D.B. has made a civil claim against Dr. Katzell related to the above- described incidents. PATIENT T.C. Patient T.C. is the female patient referred to in Counts 4-6 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. Dr. Katzell treated T.C. for chronic knee derangement from December 4, 1987 to November 18, 1991. During that time, he operated on her knee two times for internal derangement of the knee. On March 12, 1991, T.C. went to Dr. Katzell complaining of pain and swelling in her right knee. She also had right sided low back pain radiating into her right hip. Dr. Katzell examined her right hip and palpated the area in the inguinal crease. He moved her underpants to one side, exposing her vagina while he was palpating the inguinal crease. Dr. Katzell did not touch the vagina during the examination. Depending on the cut of T.C.'s underwear it may have been necessary to move her underwear to one side in order to palpate the inguinal crease. Dr. Katzell's actions on March 12, 1991, did not constitute sexual misconduct nor was it below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On November 18, 1991, T.C. went to Dr. Katzell's office for a follow- up visit, complaining of continued pain in her right knee. Dr. Katzell asked her to disrobe and put on an examination gown. She complied, leaving on her underwear. During the examination of her knee, Dr. Katzell began to rub T.C. above her knee and on the inside of her right thigh. He touched her vaginal area over her underwear with his fingers. She moved forward when he touched her and he removed his hand. There was no medical necessity to touch the vaginal area of a patient during the examination of a knee. The touching of T.C.'s genitalia during the knee examination was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constitutes sexual misconduct. Following the knee examination of November 18, 1991, T.C. immediately left Dr. Katzell's office and never returned. As a result of the above-described incident, T.C. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28365-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.C. and the Court adjudicated the Respondent guilty. T.C. has filed a lawsuit against Dr. Katzell seeking monetary damages. PATIENT S.M. Patient S.M. is the female patient referred to in Counts 7-9 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. On July 22, 1991, S.M. went to see Dr. Katzell for an independent medical evaluation relating to a slip and fall at her workplace. S.M. was complaining of upper and lower back pain, bilateral hip pain, mild knee pain and some right shoulder discomfort. S.M. was given an examination gown to wear. She put on the gown, leaving on her slip, bra and g-string panties. Dr. Katzell began to examine her and told her she would have to remove her slip. He left the room while she did so. There was no attendant in the room during the examination. She lay on the examining table and he stretched her legs at 90 degree angles. He had his hand underneath the gown, between her legs and on top of her vagina. He would rub the crease area between S.M.'s thigh and pubic area and move his hand across the vaginal area as he went from one to side to the other. There was no medical purpose for Dr. Katzell to touch S.M.'s vaginal area during his examination. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. The touching also constituted sexual misconduct. As a result of the above-described incident, S.M. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of S.M. and the Court adjudicated him guilty. S.M. has filed a civil action against Dr. Katzell for monetary damages. MITIGATION In 1992, after the complaints surfaced concerning the above-referenced patients, Dr. Katzell voluntarily stopped his practice and sought help through the Physicians Recovery Network (PRN). He entered into a five-year supervisory contract with PRN and was participating in the contract at the date of the hearing. He agrees to remain under contract with PRN as long as necessary to demonstrate that he is safely practicing medicine. Dr. Katzell was in good standing with his agreement with PRN and had no reported problems as of the date of the final hearing. PRN referred Dr. Katzell to the Behavior Medicine Institute in Atlanta, Georgia, where he underwent an out-patient cognitive behavior type of treatment for sexual problems. The treatment program is headed by Dr. Gene Abel. The recidivism rate for physicians treated in Dr. Abel's program is 0 percent. As a result of the charges made by the six patients, Dr. Katzell has made changes in his orthopedic practice. These changes in methods include always examining a female patient in the presence of a chaperon or attendant and explaining to the patient the need for any examinations which could be perceived as being in close proximity to a private area. When patients are to receive a cortisone injection, his female office staff will drape the area outside the presence of Dr. Katzell and he will return simply to administer the injection in the presence of his attendant. The medication will be massaged into place by a female attendant and not by Dr. Katzell. There have been no complaints in the three years since Dr. Katzell has made these changes in his orthopedic practice. Over twenty witnesses testified at the final hearing concerning Dr. Katzell's practice of medicine since the incidents involving the six female patients. The witnesses found that in their dealings with Dr. Katzell they found him to be a capable, professional and caring physician. Dr. Katzell was interviewed, tested, and evaluated by two forensic psychologists, Theodore Blau, Ph.D. and Florence Kaslow, Ph.D. Based on their evaluations, it is their opinion that Dr. Katzell can safely practice medicine in the future and that Dr. Katzell's fear of loss of the ability to practice medicine in the future is so overwhelming that he will not be expected to exceed the boundaries of acceptable behavior that the law or ethics require of him as a physician. The evidence did not establish that the six patients suffered any physical or severe permanent psychological harm. On the advice of counsel, Dr. Katzell entered pleas of nolo contendere to battery on the six patients. When he did so it was his understanding that would not have any significant impact with regard with his license to practice medicine. In order to get the State Attorney to agree to a plea agreement, Dr. Katzell opted to forego the taking of any depositions in the criminal case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jeffrey L. Katzell, M.D., violated Section 458.331(1)(c), Florida Statutes, in Counts 1, 2, 3, 4, 5, and 6 of the Administrative Complaint in DOAH Case No. 93-7124, dismissing Count 7 of the Administrative Complaint in DOAH Case No. 93-7124, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(t), Florida Statutes in Counts 3, 6, and 9 in the Administrative Complaint filed in DOAH Case No. 93- 7122 and in the Administrative Complaint filed in DOAH Case No. 93-7123, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7123, dismissing Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7123 as not providing a separate ground for disciplinary action given the findings that Dr. Katzell violated Section 458.329 and thus, Section 458.331(1)(x), Florida Statutes. It is recommended that the following penalty be imposed: Suspension of the license of Dr. Katzell for six months; Imposition of an administrative fine of $2,000 for each violation for a total of $36,000; Five years probation following the suspension of the license; All examinations of female patients by Dr. Katzell be made in the presence of a female chaperon, and this shall be a permanent requirement of his medical license; and Dr. Katzell is to remain under a supervisory contract with the Physician Recovery Network until the conclusion of his probationary period. DONE AND ENTERED this 19th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 93-7122, 93-7123, and 93-7124 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraph 10 (there were two paragraphs numbered 10): Accepted in substance. Paragraphs 11-24: Accepted in substance. Paragraph 25: Rejected as not supported by clear and convincing evidence. Paragraphs 26-27: Rejected as unnecessary because incidents related to the December 30 visit were not alleged in the Administrative Complaint. Paragraph 28: Accepted in substance except that the undergarment that Dr. Katzell asked her to remove was her panties. Paragraphs 29-37: Accepted in substance. Paragraph 38: Accepted in substance except as to the date on which he began treatment for chronic knee derangement. Paragraphs 39-54: Accepted in substance. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as not supported by clear and convincing evidence. Paragraphs 57-65: Accepted in substance. Paragraph 66: Accepted in substance except that in relation to the criminal information pertaining to A.F., Dr. Katzell entered a plea of nolo contendere to battery on the person of A.F. not T.B. Paragraphs 67-70: Accepted in substance. Paragraph 71: Rejected because the allegations were not part of the Administrative Complaint Paragraphs 72-77: Accepted in substance. Paragraphs 78: Rejected because the allegation was not part of the Administrative Complaint. Paragraphs 79-81: Accepted in substance. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 2: The first sentence and the first half of the second sentence are rejected as unnecessary. The remainder is accepted in substance. Paragraph 3: Accepted in substance. Paragraph 4: Rejected as unnecessary detail. Paragraphs 5-7: Rejected as unnecessary detail. Paragraphs 8-11: Rejected as subordinate to the findings that were actually made. Paragraphs 12-15: Rejected as unnecessary detail. Paragraph 16: Rejected to the extent that it implies that all of Dr. Katzell's actions were in compliance with the orthopedic standard of care. Accepted in substance to the extent that the medical records alone do not show the violations charged in the administrative complaints. Paragraphs 17-18: Accepted in substance. Paragraph 19: The first sentence is rejected to the extent that the patient indicated that she had fallen. She indicated that she caught herself from falling as she was walking down the stairs. The remainder is accepted in substance. Paragraphs 20-24: Accepted in substance. Paragraphs 25-26: Rejected as unnecessary. Paragraphs 27-30: Accepted in substance. Paragraphs 31-37: Rejected as unnecessary because the actions of Dr. Katzell during the December 30 visit were not alleged in the Administrative Complaint. Paragraph 38-39: Accepted in substance. Paragraph 40: Rejected as unnecessary detail. Paragraphs 41-42: Accepted in substance. Paragraphs 43-44: Rejected as unnecessary detail. Paragraph 45: The first two sentences are rejected as unnecessary detail. The last sentence is accepted in substance. Paragraphs 46-48: Accepted in substance. Paragraph 49: The first sentence is rejected as constituting argument. The second sentence is rejected as unnecessary detail. Paragraph 50: The portion of the sentence dealing with sexual activity is accepted in substance as it relates to the January 23 visit but the portion dealing with practice below the standard of care is rejected as not supported by the evidence. Paragraphs 51-53: Accepted in substance. Paragraph 54: Rejected as unnecessary detail. Paragraph 55: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 56-58: Accepted in substance. Paragraph 59: Rejected as constituting argument. Paragraph 60: Rejected as irrelevant. The inappropriate touching of the vagina is sexual activity and it is irrelevant whether they talked about sexual topics or whether either person was sexually aroused by it. Paragraph 61: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 62: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 63: The first sentence is rejected as not supported by the evidence. Having judged the credibility of the witnesses, the second sentence is rejected. Paragraphs 64-71: Accepted in substance. Paragraph 72: Rejected as unnecessary. Paragraph 73: The first sentence is accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 74-75: Rejected as subordinate to the facts found. Paragraphs 76-78: Accepted in substance. Paragraph 79: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 80-85: Rejected as unnecessary because the Administrative Complaint does not contain allegations related to this portion of the October 9 visit. Paragraphs 86-87: Accepted in substance. Paragraph 88: Rejected as unnecessary detail. Paragraph 89: Accepted in substance. Paragraph 90: Rejected as unnecessary detail. Paragraph 91: The first half of the sentence is rejected as unnecessary detail. The last half of the sentence is accepted in substance. Paragraph 92: Rejected to the extent that it implies that Dr. Katzell did not touch A.F.'s clitoris and her vaginal area. Paragraphs 93-95: Rejected as irrelevant because it was the touching of the clitoris and the vaginal area which was at issue not the palpating of inguinal crease or the touching of the pubic bone. Paragraph 96: The first sentence is accepted in substance. The second sentence is rejected as irrelevant since the complained touching was not in close proximity but was in the vagina. Paragraph 97: Rejected as irrelevant. Paragraph 98: Rejected as constituting argument. Paragraph 99: Accepted in substance. Paragraph 100: Having judged the credibility of the witnesses, this paragraph is rejected. Paragraph 101: Rejected as not supported by the evidence. If the clitoris is covered by the labia, it is uncovered when a person sticks his thumb in the vaginal crease and runs his thumb down the crease and back up again. Paragraph 102: The first sentence is rejected as not supported by the evidence. The last sentence is rejected as irrelevant. Paragraphs 103: Rejected as irrelevant. Paragraph 104: Accepted in substance. Paragraphs 105-107: Rejected as irrelevant. Paragraph 108: Rejected as constituting argument. Paragraph 109: Accepted in substance. Paragraph 110: Rejected as not supported by the evidence. Paragraphs 111-115: Accepted in substance. Paragraphs 116-122: Rejected as unnecessary because the Administrative Complaint does not contain allegations concerning the touching of B.B.'s breasts. Paragraphs 123-127: Accepted in substance. Paragraphs 128: Rejected as unnecessary detail. Paragraphs 129-131: Rejected as irrelevant since the finding is that a vaginal examination was performed. Paragraph 132: Rejected as constituting argument and subordinate to the finding that Dr. Katzell did perform a vaginal examination. Paragraph 133: Rejected as unnecessary detail. Paragraph 134: Rejected as subordinate to the finding that he did perform a vaginal examination. Paragraph 135: Rejected as irrelevant as to whether she felt that he was engaging in sexual activity. Paragraph 136: Rejected as not supported by the greater weight of the evidence that the pressure that B.B. felt was consistent with a rectal examination. Paragraphs 137-138: Rejected as subordinate to the facts actually found. Dr. Koulisis's statement corroborated B.B.'s testimony that a vaginal examination was performed. Paragraph 139: Rejecting as constituting argument. Paragraph 140: Rejected as irrelevant. Paragraph 141: Rejected as constituting argument. Paragraph 142: Accepted in substance. Paragraphs 143-144: Rejected as irrelevant. There was no showing that Dr. Katzell was prejudiced by the loss of the letter. Paragraph 145: Accepted in substance. Paragraph 146: The first and third sentences are accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 147: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 148: Rejected as unnecessary detail. Paragraph 149: Accepted in substance. Paragraph 150: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 151-153: Rejected as constituting argument and subordinate to the facts actually found. Dr. Katzell did see D.B. in the hospital on at least one occasion and he did touch her in her vaginal area during that examination. Paragraphs 154-155: Accepted in substance. Paragraphs 156-157: Rejected as irrelevant. The inappropriate behavior was not touching near the crotch area but the touching of the crotch. Paragraphs 158-159: Rejected as not supported by the evidence. Paragraph 160: Rejected as irrelevant. Paragraph 161: Rejected as subordinate to the finding that there was a touching. Paragraphs 162-164: Accepted in substance. Paragraphs 165-166: Rejected as irrelevant. Paragraph 167: Rejected as it refers to the last visit, otherwise accepted in substance. Paragraphs 168-172: Rejected as subordinate to the finding that there was a touching in the crotch area. Paragraph 173-175: Accepted in substance. Paragraph 176: Accepted. Paragraphs 177-179: Rejected as subordinate to the facts actually found that there was a touching in the vaginal area. Paragraph 180: Accepted in substance. Paragraphs 181-182: Rejected as subordinate to the finding that there was a touching in the vaginal area. Paragraph 183: Rejected as unnecessary. Paragraph 184: The first sentence is rejected as unnecessary. The sentence is rejected as constituting argument and as not supported by the evidence. Both women indicated that D.B. did not go into specifics and the sister-in-law testified that D.B. did not like the way that he had examined her and touched her legs. Paragraph 185: Rejected as not supported by the evidence. There was testimony that D.B. advised her husband. Paragraph 186: Rejected as irrelevant. Paragraphs 187-188: Rejected as subordinate to the finding that there were inappropriate touchings of the vagina. Paragraph 189: Accepted in substance. Paragraph 190: Having judged the credibility of the witnesses, it is rejected. Paragraph 191: Rejected as not supported by the evidence. Paragraphs 192-195: Accepted in substance. Paragraphs 196-199: Rejected as unnecessary detail. Paragraphs 200-203: Accepted in substance. Paragraphs 204-205: Rejected as irrelevant. Paragraphs 206: Accepted in substance. Paragraph 207: Accepted that Dr. Katzell moved the underwear, but rejected as irrelevant as to whether he remembers exposing the vagina. Paragraph 208: Accepted in substance. Paragraph 209: Rejected as unnecessary detail. Paragraph 210: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 211-212: Rejected as unnecessary detail. Paragraphs 213: Rejected as subordinate to the finding that he touched the vagina. Paragraph 214-216: Rejected as subordinate to the fact that he touched the vagina. Paragraph 217: Accepted in substance. Paragraph 218: Rejected as not supported by the evidence. Paragraphs 219-220: Accepted in substance. Paragraphs 221-222: Rejected as unnecessary detail. Paragraph 223: Accepted in substance. Paragraph 224: The first sentence is rejected as unnecessary detail. The last sentence is accepted in substance. Paragraph 225: Accepted in substance. Paragraph 226-228: Rejected as unnecessary detail. Paragraph 229-231: Accepted in substance. Paragraphs 232: Rejected as irrelevant. Paragraph 233: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 234: The first sentence is accepted in substance. The remainder is rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraphs 235-236: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 237: Accepted in substance. Paragraph 238: Rejected as irrelevant. Paragraph 239: Rejected to the extent that it implies that Dr. Katzell did not touch the vaginal area, but otherwise accepted in substance. Paragraph 240: Accepted in substance to the extent that it refers to the actions described in Paragraph 239 of Respondent's Findings of Fact. Paragraph 241: Rejected as subordinate to the finding that Dr. Katzell touched S.M.'s vaginal area. Paragraphs 242-245: Rejected as irrelevant. Paragraph 246: Rejected as constituting argument. Paragraphs 247: Accepted in substance. Paragraph 248: Rejected as constituting argument. Paragraph 249: Rejected as not supported by the evidence. Paragraph 250: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 251: Accepted in substance. Paragraph 252-257: Rejected as unnecessary detail. Paragraph 258-261: Rejected to the extent it implies that the tests and evaluations indicate that Dr. Katzell did not commit the violations alleged in the Administrative Complaint. Paragraph 262: The first two sentences are rejected as irrelevant. The third sentence is rejected as not supported by evidence that Dr. Katzell did not engage in sexual activity with the patients. Paragraph 263: The first two sentences are rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. The last sentence is accepted in substance. Paragraph 264: Rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. Paragraph 265: Accepted in substance. Paragraph 266: Rejected as not supported by the evidence. Paragraph 267: Rejected as constituting argument. Paragraph 268: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 269: Accepted in substance. Paragraphs 270-271: Rejected as irrelevant since there was sufficient evidence to establish that Dr. Katzell did commit a battery on each of the six patients. In the case of D.B., he did commit a battery on her on July 17, 1991 and out of the eleven counts of battery on D.B. for which Dr. Katzell was charged there was sufficient evidence to support a charge of battery on eight of the counts. Paragraph 272-273: Rejected as irrelevant. Paragraph 274-277: Accepted in substance. Paragraph 278: Rejected as unnecessary. Paragraph 279: Accepted in substance. Paragraphs 280-282: Rejected as subordinate to the findings that committed the violations as set forth in the Findings of Fact of this Recommended Order. Paragraphs 283-287: Accepted in substance. Paragraph 288: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 289: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The third sentence is rejected as irrelevant. Paragraph 290: Accepted to the extent that the evidence presented established that it is not likely that Dr. Katzell is not likely to commit in the future the type of actions alleged in the Administrative Complaint. COPIES FURNISHED: Albert Peacock, Esquire Hugh R. Brown, Qualified Representative Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Assistant Director Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Department of Professional and Business Regulation, Board of Medicine, (Petitioner) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. Anand Lattinand, M.D., (Respondent) is and at all times material to this case, has been a board certified Dermatologist and a licensed physician in the State of Florida holding license number ME0034105, and located at 3450 East Fletcher Avenue, Tampa, Florida 33613. The Respondent first met A. L. (patient), a male, upon examination in July, 1992 for a lesion on the left axilla and anterior chest. Upon the initial examination, the Respondent learned that the patient, a retired lawyer, was a charter boat operator. The Respondent diagnosed the lesion as an inflamed seborrheic keratosis and applied liquid nitrogen, causing the lesion to blister and peel off. An appointment made for December 1992, was cancelled by the patient. On or about May 6, 1993, the patient, then 61 years old, presented to the Respondent with complaints of a rash on his chest. Upon examination, the Respondent noted that the rash also appeared on the patient's back and arms. The Respondent performed a dermatological examination on the patient to determine the cause of the rash. In addition to the rash, the examination revealed redness and papules (bumps) on the patient's skin. Although the patient indicated to the Respondent that the rash did not itch, the skin rash was excoriated and ulcerated, indicating that it was being scratched. Some of the papules exhibited a "lichenified" appearance. The Respondent requested that the patient undress so that a full body exam could be performed. Further examination revealed that the papules extended to the patient's hips and upper buttocks and on the lower legs. Such papules can be indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis. The patient is a nudist. The patient did not tell the Respondent about his sun exposure. Such sun exposure may result in appearance of papules on parts of the body. The Respondent was not aware of the patient's nudist activities. Based on the Respondent's suspicions about the origin of the rash, further diagnostic inquiry warranted a complete genital examination. The Respondent requested and obtained the patient's consent for the genital examination. A standard dermatological genital examination includes the touching of the penis and testicles of a male patient. The scrotum is examined for eczema. The skin of the penis is manipulated. The penis is squeezed and the urethra is examined for evidence of discharge. The Respondent put gloves on his hands and performed the genital examination. As the examination progressed, the Respondent informed the patient of the purpose for the procedure. The exam revealed no scabies or insect bites. There was no discharge present. There was no genital indication of herpes simplex or dermatitis. Despite the absence of genital symptoms, the Respondent was unable to rule out disseminated herpes simplex as the cause for the existing skin condition. Accordingly, the Respondent inquired into the patient's marital status and sexual habits. Inquiry into the sexual habits of the patient was medically appropriate given the nature of the suspected origin of the condition. Beyond mere herpes simplex, the Respondent was concerned about the possibility of AIDS and its related impact on the progression of herpes simplex. The patient appeared to be uncomfortable with the questioning. The Respondent had doubts as to the credibility of the information being provided and so discontinued the questioning. The examination was concluded. Unable to specifically identify the cause of the condition, the Respondent provided the patient with two ointments intended to treat the rash. The patient dressed, paid for the examination and left the Respondent's office. Based on the testimony of the patient, the Petitioner alleges that, without the patient's consent, the Respondent fondled the patient's genitals with his ungloved hands to the point when the patient's penis became erect, and that the Respondent then requested that the patient masturbate while the Respondent watched. The Petitioner asserts that the patient declined the masturbation request, but permitted the Respondent to complete the exam. Apparently, the patient made no objection to the alleged fondling until he was asked to masturbate. Based on the presentation and demeanor of the patient-witness at hearing, the testimony of the patient is not credible. The evidence fails to establish the allegations of the Administrative Complaint. The Respondent denies that the examination was performed ungloved, that he manipulate the patient's penis to erection or that he requested that the patient masturbate. The testimony of the Respondent is credited. The greater weight of the evidence establishes that under the circumstances, the genital examination was properly performed and is an appropriate method of attempting to diagnose the cause of the skin rash from which the patient suffered.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and RECOMMENDED this 8th day of June, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6252 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8. Rejected, contrary to the greater weight of credible and persuasive evidence. 9-10. Rejected, unnecessary. 11. Rejected, contrary to the greater weight of credible and persuasive evidence. 12-14. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3-4. Rejected, irrelevant, unnecessary. 7. Rejected, unnecessary. 9. Rejected as to whether patient would be aware of visual examination, unnecessary. 12. Rejected, unnecessary. 23. Third and fourth sentences are rejected, unnecessary. 27. Rejected, subordinate. 30. Rejected, unnecessary. COPIES FUIRNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Steve Rothenburg, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Veronica E. Donnelly, Esquire J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER, TIPTON & MOSELEY 100 North Tampa Street, Suite 2825 Tampa, Florida 33602
