The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed osteopathic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found probable cause to suspect that the licensee has committed one or more disciplinable offenses. At all times material to this proceeding, Respondent was licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 10658. Background On February 3, 2012, T.S., a 26-year-old single mother, presented to Respondent's medical office as a new obstetrical patient. At that time, T.S. was carrying her third child. For the next five months, T.S. and Respondent enjoyed what was, by all appearances, a productive and appropriate physician-patient relationship. However, as discussed below, Respondent would transgress the bounds of that relationship during an office visit on the evening of July 11, 2012. First, though, it is necessary to sketch the relevant background. On the morning of July 11, 2012, T.S.——who was then nine months pregnant——appeared at Respondent's office for a routine examination. During the visit, T.S. advised Respondent that she was experiencing substantial cramping and discomfort. In response to these complaints, Respondent performed a pelvic examination and a sonogram, both of which yielded normal results. Later that day, at approximately 4:00 or 4:30 p.m., T.S. telephoned Respondent's office and informed his staff of a new symptom: namely, that significant pain was making it difficult to lift her right arm. Although a member of the staff advised T.S. that she could be seen immediately, logistical constraints made it impossible for her to report to Respondent's office prior to the close of business. Over the course of the next several hours, T.S. communicated with Respondent by phone and text (his cell number was available to all patients) concerning the new symptom and her preference to be seen that evening. Ultimately, Respondent informed T.S., via a text message sent at approximately 6:15 p.m., that she could meet him at his office for an examination. The Misconduct T.S. arrived at the office at 6:30 p.m., whereupon Respondent unlocked the front door and invited T.S. inside. Upon entering the lobby area, which was only partially illuminated, T.S. saw no sign of Respondent's office staff. At that point, Respondent asked T.S. to sign a form that read as follows: I give consent to be seen at Dr. Miller's office, by Dr. Miller, without an assistant present, at my request, in order to have a medically urgent need addressed. The foregoing document, although signed by T.S., is of dubious propriety, as obstetrical treatment without a chaperone present is rarely, if ever, appropriate.3/ This issue is of no moment, however, for most of what occurred next——as established by the credible testimony of T.S. and Petitioner's expert witness——was not a legitimate medical examination but, rather, nonconsensual sexual contact perpetrated under the guise of an examination. Upon the execution of the "consent" document, Respondent directed T.S. to an examination room and informed her that the likely cause of her arm pain was either a clogged milk duct or the positioning of the fetus. Respondent then requested that T.S. disrobe her upper body, at which point he left the room for a few moments. Upon his return, Respondent asked T.S. to recline on the examination table, purportedly so he could examine her right breast to rule out the possibility of a clogged duct. T.S. complied and, for the next 30 to 45 seconds, Respondent squeezed her breast in a manner quite dissimilar to examinations she had undergone in the past. In particular, T.S. thought it peculiar that Respondent "cupped" her entire breast with his hand——as opposed to examining the breast from the outside in with the pads of his fingers.4/ Even more troublingly, Respondent asked T.S., while his hand was still in contact with her breast, whether "it felt good."5/ After removing his hand from T.S.'s breast, Respondent remarked to T.S. that her arm pain was not the result of a clogged milk duct. Respondent further stated that her symptoms would be assuaged upon the baby's delivery, an event which, according to him, could be facilitated by sexual activity. Before proceeding further, it is important to note that T.S.'s symptoms of arm pain arguably warranted, at most, a legitimate breast examination. In other words, there were no symptoms or aspects of T.S.'s history that justified a pelvic examination at that time,6/ particularly since Respondent had performed such a procedure (along with a sonogram) earlier in the day. Nevertheless, Respondent informed T.S. that he "needed" to measure the dilation of her cervix; then, in a disturbing and conspicuous departure from accepted obstetrical practice,7/ Respondent applied lubricant to one of his ungloved hands. Moments later, Respondent inserted two fingers into T.S.'s vagina and, for the next 30 seconds or so, positioned his penetrating hand in such a manner that his thumb was in continuous contact with T.S.'s clitoris——something that would never occur during a proper examination.8/ Tellingly, this was not the only physical contact incongruous with a legitimate pelvic examination, for at one point Respondent used his free hand to pull on one of T.S.'s nipples.9/ By now suspicious of Respondent's conduct, T.S. attempted to maneuver her body toward the head of the examination table. As she did so, Respondent began to remove his fingers from T.S.'s vagina while stating that she "needed to have sex" in order to induce labor. This could be accomplished, Respondent further suggested, by having sex with him, an invitation T.S. sensibly declined.10/ On the heels of this rejection, Respondent told T.S. that the only other means of inducing labor would be to "strip her membranes." Owing perhaps to an urgent desire to give birth——the reader should recall that she was nine months pregnant and in significant discomfort——T.S. acceded to Respondent's suggestion. Respondent then penetrated T.S.'s vagina with his (ungloved) hand for a second time and, prior to the removal of his fingers, repeatedly implored T.S. to engage in sexual intercourse with him.11/ When T.S. refused and tried to move to the other end of the table, Respondent grabbed her by the hips and pulled his midsection into her exposed vaginal area. By virtue of this aggression, T.S. could feel that Respondent's penis, albeit clothed, was erect.12/ Wishing to extricate herself from this situation, T.S. pushed Respondent away, at which point he attempted to "laugh off" his abhorrent behavior. T.S. dressed herself and, a short time later, drove to the home of an acquaintance to seek advice. Later that evening, T.S. made a report of the incident to the appropriate authorities,13/ which ultimately resulted in the filing of the Complaint at issue in this proceeding. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is guilty of violating section 459.015(1)(l), as charged in Count I of the Complaint. It is further determined, as a matter of ultimate fact, that Respondent is guilty of violating section 456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged in Count II of the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Osteopathic Medicine finding Respondent guilty of Counts I and II of the Administrative Complaint; revoking Respondent's license to practice osteopathic medicine; and imposing a fine of $10,000.00. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. STUART M. LERNER 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 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Florida Physician Medical Group (Respondent or FPMG), violated Florida law by engaging in discriminatory, disparate treatment of Petitioner, Dr. Phillip St. Louis (Petitioner). Petitioner maintains that Respondent refusal to employ him constitutes discrimination based upon his race or national origin.
Findings Of Fact Petitioner is a black male born in Trinidad. He is fully educated and qualified to practice medicine in the State of Florida, and has done so for a number of years. Petitioner specialty is neurosurgery. He has practiced at a number of hospitals in the greater Orlando area for over ten years. The instant case arose when Petitioner was denied employment with Respondent. Petitioner maintains he is fully competent and qualified to become employed by Respondent and that the company has denied him employment based upon his race (black) and national origin. Prior to March 2009, Respondent considered hiring Petitioner for employment. With that end as the objective, Petitioner submitted an application for malpractice coverage through an entity that insures Respondent's physicians. That entity, described in the record as (the Trust), reviews applications for coverage and considers whether it can provide malpractice coverage for a physician based upon a number of factors, including but not limited to, past work history, education and training, and past malpractice claims made against and paid by the subject physician. Approval for medical malpractice coverage by Adventist Health System (AHS) through the Risk Management Department (Risk Management) was a prerequisite to employment with Respondent. The requirement to obtain professional liability coverage was pursuant to the company-wide policy CW RM 220. At all times material to his application, Petitioner knew or should have known that Respondent required medical malpractice coverage. As of the time of the hearing and for at least nine years prior thereto, Petitioner has performed neurosurgery without malpractice coverage. This practice, known in the record as working "bare," is disfavored by Respondent. All physicians who seek to be employed by Respondent must submit an application for review and approval for professional liability coverage under the self-insured Trust. Personnel employed with AHS's Risk Management review applications and recommend disposition of the requests for coverage. Stacy Prince joined AHS as a director of Risk Management in 2005. Stacy Prince and Sandra Johnson were responsible for deciding whether Petitioner would qualify for medical malpractice coverage. The decision to deny coverage for Petitioner was reached without regard for Petitioner's race or national background. At the time that Petitioner was being considered for medical malpractice coverage with the Trust, Stacy Prince and his supervisor (Sandra Johnson) did not know the Petitioner’s race or national origin. The Risk Management decision was based on Petitioner's malpractice claims history, as is more fully explained below. Neurosurgery is a high-risk medical practice. It is possible that this specialty group of physicians are exposed to more claims and more serious claims than other specialty physicians. Nevertheless, in determining whether a physician can be covered, Risk Management must look at the totality of the circumstances to evaluate whether a candidate can be covered by the Trust. Most physicians covered by the Trust do not have any malpractice claims. Of those who do have malpractice claims, the vast majority have had only one or two incidents of alleged malpractice. Because each candidate's application for coverage was reviewed on a case-by-case basis, the factual circumstances surrounding a malpractice claim may be pertinent to the decision of whether a physician may be covered. An example of a malpractice claim that would not be given much gravity would be one that occurred while a physician was in training under the supervision of a licensed physician. In such instances, the training physician is named incidentally to the primary supervising physician. Such "shotgun" claims typically name everyone who provided care for the patient, regardless of the personal interaction or level of care actually rendered. None of Petitioner’s claims fell within this category. A second type of malpractice claim that might be discredited would be one that did not result in any monetary award or damages to the patient. None of Petitioner’s claims fell within this category. Based upon Stacy Prince's review of Petitioner's history of claims, Petitioner was deemed too great a risk to provide medical malpractice coverage. The malpractice history reviewed included four claims disclosed by Petitioner and a fifth claim that was not reported by Petitioner, but was discovered by Risk Management. The fact that the fifth claim was not disclosed to Risk Management in the application process was also a concern to Mr. Prince and influenced his decision. No physician, regardless of specialty, with claims similar to Petitioner’s has been insured by the Trust. Additionally, although unknown to Petitioner at the time of application, a sixth medical malpractice claim was made against Petitioner. The potential for additional claims (that could be also unknown to Petitioner) was a concern in determining whether to provide coverage for Petitioner. With regard to Petitioner's claims, at least two of the claims were unresolved, as of the time of review of Petitioner's application. Additionally, a parallel investigation and administrative action by the Florida Department of Health regarding one claim was also a concern for Risk Management. Whether or not Petitioner practices within the standard of care expected of physicians in Florida is of significant importance to Respondent. No other candidate for employment presented to Respondent with similarly-serious claims. Petitioner's lack of candor regarding the number of claims against him and the severity of claims was also a concern to the undersigned. No physician was given preferential treatment by Respondent who was similarly situated, as no other physician reviewed in this record had similar claims. The factors resulting in the denial of coverage were: the number of claims, the open claims, the history of damages awarded, the unknown amount of future damages based upon unresolved claims, the lack of malpractice coverage, and Petitioner's failure to fully and accurately disclose information needed to review his application. None of the physicians who Petitioner identified as comparably situated, and who allegedly received more favorable treatment, had the number or severity of claims, the level of damages associated with the claims, or were practicing "bare" for the period of time Petitioner has chosen to practice. All of the doctors were eligible for medical malpractice coverage at all times material to this case or during employment with Respondent. In contrast, Petitioner practiced "bare" for almost nine years since his insurer canceled his insurance coverage due to the “Nature of Claim” in July of 2000. Petitioner was cancelled by his insurer after the insurer had to pay its policy limits of $500,000. An example of a malpractice claim associated with Petitioner was his operation on the wrong side of a patient’s head. That surgery resulted in a $1.75 million dollar settlement. Petitioner presented no evidence to establish that any of Respondent's actions or inactions were based upon his race or national origin. Respondent articulated bona fide business reasons for why the Trust denied medical malpractice coverage for Petitioner. More important, had Risk Management agreed to provide coverage for Petitioner, then Bryan Stiltz, Respondent's CEO, would have hired Petitioner. The decision not to hire Petitioner due to his failure to qualify for medical malpractice coverage was not based on Petitioner’s race or national origin and was consistent with Respondent’s employment policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 3rd day of August, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2011. COPIES FURNISHED: Jerry Girley, Esquire The Girley Law Firm 125 East Marks Street Orlando, Florida 32803 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789-3675 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark H. Jamieson, Esquire Moran, Kidd, Lyons, Johnson & Berkson, P.A. 111 North Orange Avenue, Suite 1200 Orlando, Florida 32801-2361 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
