The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs he incurred as a result of his participation in the administrative proceeding Respondent initiated against him in DPR Case Numbers 01-11408 and 89-07347 (DOAH Case No. 92-4948)?
Findings Of Fact Based upon the stipulated evidentiary record, consisting of Joint Exhibits 1 through 7, the following Findings of Fact are made: Facts Found in DOAH Case No. 92-4948 Petitioner is now, and has been for approximately the past 15 years, a physician licensed to practice medicine in the State of Florida. He specializes in internal medicine and cardiology and is board certified in these specialities. He currently is the Chief of Cardiology and head of the Coronary Care Unit at North Ridge Hospital and has staff privileges at approximately five other hospitals in the Broward County area. At all times material to the instant case, Health Imaging, Inc., (hereinafter referred to as "Health") was in the business of providing ultrasound imaging services in the State of Florida at the request of physicians, hospitals and members of the community at large. The tests performed by Health were non-invasive studies that involved no health risks. They included echocardiograms, carotid ultrasounds and other studies of the heart and vascular system done with ultrasound equipment. Unlicensed technicians operated the equipment and administered the tests. Florida-licensed physicians interpreted the test results. In August of 1987, Warren Green and his wife, the owners of Health, contacted Petitioner and asked him if he would be interested in contracting with Health to provide such interpretive and diagnostic services. After looking into the matter and satisfying himself that Health's equipment was of good quality and that its technicians were well qualified, Petitioner entered into a written agreement (hereinafter referred to as the "Agreement") with Health, the body of which provided as follows: This agreement made and entered into this 18 day of August 1987 by and between Health Imaging, having its principal business address at 6278 North Federal Highway, Suite 372, Ft. Lauderdale, Florida, hereinafter referred to as "HEALTH" and Jorge Flores, M.D., having his principal business address at 5700 N. Federal Highway, Ft. Lauderdale, Florida, hereinafter referred to as "DOCTOR" is made with reference to the following: WHEREAS, HEALTH is engaged in business throughout the Florida area providing ultrasound and vascular services to hospitals, physician offices and the community. DOCTOR is engaged in the business of providing medical services to his patients and patients of other doctors and hospitals in the Ft. Lauderdale, Florida area. Health desires to contract from DOCTOR for certain diagnostic interpretation services for its own patients and patients of other doctors and hospitals in the Florida area. NOW THEREFORE, HEALTH AND DOCTOR AGREE AS FOLLOWS: Equipment. HEALTH agrees to provide all necessary equipment and supplies to perform the services according to the schedule set forth on Exhibit A, attached hereto. Personnel. Health shall provide qualified technologists to operate the equipment for the services set forth on Schedule A, attached hereto. Solicitation of Employees. DOCTOR shall not during the term of this agreement nor a period of One (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by HEALTH during the term of this agreement without the prior written consent of HEALTH. Physician Interpretation Personnel. DOCTOR agrees to provide necessary qualified physicians for interpretations. Payment. For and in consideration of the services and promises contained herein by DOCTOR, HEALTH agrees to pay DOCTOR in accordance with the fee schedule set forth on Schedule A, attached hereto. All fees are to be paid in advance or at time of interpretation. Default. In the event of the default of any payment this contract may be terminated by DOCTOR. Term, Termination. The term of this agreement is for one (1) year. After Thirty (30) days either party may terminate this agreement, without cause, by giving Thirty (30) days written notice provided that in no event may HEALTH terminate this agreement unless all monies owing to DOCTOR under the terms hereof are paid in full. Compliance with Law. Both parties agree to comply with all municipal, state and federal laws and regulations. Governing Law. This agreement shall be construed under the laws of the State of Florida. Independent Contractor. DOCTOR is performing the service and duties required hereunder as an independent contractor and not as an employee, agent, partner, or joint venturer with HEALTH. Entire Agreement. This instrument shall be deemed to contain the entire agreement between HEALTH and DOCTOR and supercedes [sic] any prior or existing agreements, understandings, arrangements, terms, conditions, negotiations, or representations, oral or written, made by either party concerning or affecting the subject matter hereof. No modification of this agreement may be made except in writing, signed by HEALTH and DOCTOR. Schedule A, which was referenced in and appended to the Agreement, read as follows: INTERPRETATION FEE SCHEDULE Community, Corporate, Club and Association Screening Program Fee Schedule. EXAM: Echocardiography only FEE: One thousand dollars (1,000.00) per month for 400 studies in any thirty (30) day period. Five dollars ($5.00) per study for all studies exceeding four Hundred (400) studies in any given thirty (30) day period. Community, Corporate, Club and Association Screening Program Fee Schedule. EXAMS: (Any combination of the following) Carotid Ultrasound with Doppler and Periorbital Doppler Echocardiography Upper and Lower Extremity Doppler Study FEE: Three thousand dollars ($3,000.00) per month for any combination of the above studies, not to exceed 1,500 studies in any thirty (30) day period. Any combination of the above studies will be at a rate of Five Dollars ($5.00) per study in any given thirty (30) day period. Hospital and Physician offices fee Schedule: (Any studies performed in a hospital or Physician office, ordered by a physician) EXAMS Carotid ultrasound with doppler $65.00 Echocardiography $65.00 Abdominal ultrasound $65.00 Holter monitoring $65.00 Peripheral arterial examination $35.00 Peripheral venous examination $35.00 The Agreement and Schedule A were drafted by the Greens without the assistance of an attorney. Petitioner furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services. Petitioner was compensated $1,000 per month the first four months and $3,000 per month the remaining 14 months for his services. Most of the individuals whose test results Petitioner interpreted during his 18-month association with Health were self-referred. The remainder of the test takers were referred by physicians. None had any prior professional relationship with Petitioner. 2/ Petitioner prepared a signed, written report of his findings for each test taker. 3/ He sent the report, along with the materials that he had reviewed in making his findings, to Health, which in turn provided the report to the test taker or to the referring physician, if there was one. 4/ Petitioner did not consider the test takers to be his patients. He therefore did not keep copies of the reports he had prepared and sent to Health or the test materials upon which these reports had been based. 5/ The Greens had assured Petitioner at the outset, however, that they would maintain these records and make them available to Petitioner upon his request should he need them for some reason. The Greens were true to their word. Whenever Petitioner asked to see a copy of a report or test materials, 6/ the Greens complied with his request. The Greens still have in their possession copies of the reports Petitioner had prepared and transmitted, as well as the related test materials. While Petitioner was aware that Health advertised to generate business, he was not asked to assist in any way, either as a consultant or otherwise, in the preparation or placement of any of Health's advertisements. Indeed, the first time he saw one of these advertisements was approximately five or six months after he began his association with Health. The advertisement was in a local newspaper that he happened to be reading. Some months later he saw another advertisement in the same newspaper. He found the contents of this particular advertisement to be "totally unacceptable." He therefore telephoned the Greens and complained about the advertisement. The Greens responded to Petitioner's complaint by discontinuing the advertisement. A short time thereafter, upon the suggestion of a Department investigator who warned Petitioner "to stay away from these people," Petitioner severed his relationship with Health. He did so, not because he believed that he had done anything wrong, but because the Department, through its investigator, had expressed its concerns regarding the matter. The Department's Investigation On or about January 1, 1989, the Department received a complaint concerning a newspaper advertisement ran by Health. The complaint was assigned a Department case number, DPR Case Number 01-11408 and a Department investigation into the matter was commenced. As part of her investigation, the Department investigator working on the case, Jeane Clyne, interviewed Theresa Green and then Petitioner. Thereafter, she prepared a written investigative report (hereinafter referred to as "Clyne's investigative report") summarizing what had transpired during the interviews. With respect to the Green interview, Clyne stated the following in her report: On 3/30/89 the above was interviewed at Sheraton Harbor Place, Ft. Myers, Fl. Green identified herself as President and owner of Health Imaging. Green stated she has a Bachelor of Science degree in Kinesiology from the University of California at Los Angel[e]s and is Registered by Registry of Diagnostic Medical Sonographers (RDMS) as a technologist. Green stated she employs technologists who are RDMS certified or eligible. Green stated the technologists perform the diagnostic ultra sound tests. Green stated that the patient is given a copy of the pictures and an explanation of what the pictures are. Green stated no interpretation is given by the technicians, all interpretations are done by Board Certified Cardiologists licensed and practicing in Florida. Green stated the primary physician being used at present is Jorge Flores, M.D. With respect to her interview with Petitioner, Clyne stated the following in her report: On 3/30/89 the above was interviewed by telephone. Flores stated he looks at the films, interprets the tests, fills out a form report and signs the report. Flores stated that these are not his patients and he does not give any medical advice. If a problem is seen on the film, Flores stated he tells the patient to . . . take the report and pictures to their family physician. Flores stated if the patient has no family physician, he will accept and treat the patient as any other patient. Flores stated Green hires experienced technologists and all patients are given forms indicating no medical advice will be given by the technologists. On April 5, 1989, Clyne received a letter, dated April 4, 1989, from Michael Davidson, Health's Vice President and General Counsel. In his letter, Davidson stated the following: Regretfully, we must acknowledge that one of our employees recently erroneously stated that we provided test interpretations at the test site. As I am sure you are satisfied, this statement was erroneous and we do not indulge in that practice. I trust that we can consider your investigation complete and the matter closed. I have counseled the employee in question, as well as all our other employees, stressing that only licensed medical doctors can properly interpret results and that viewing the test photos does not and should not be represented to constitute an interpretation of these tests. We invite you to visit any of our test sites on any occasion you wish and will extend every courtesy to you should you decide to do so. During the course of its investigation, the Department also received a letter, dated April 24, 1989, from Henry McIntosh, M.D., Past President of the American College of Cardiology, expressing his concern regarding the "imaging racket." In his letter, McIntosh stated the following: Another problem which deserves attention is the imaging racket. There are increasing numbers of patients who are being told that they have prolapse of the mitral valve and are becoming quite overly concerned. Clearly, these studies without appropriate consultation are of little value. Is there anything we can do to get them regulated? The American College of Cardiology has attempted to do something about controlling it, simply because it is said that it is read by a "Fellow of the American College of Cardiology." We do not have any authority to police that use of the reference, however. Accompanying the letter was an advertisement that Health had run in the Lakeland Ledger. The Department also received a letter, dated May 5, 1989, from Robert Slayton, M.D., in which he expressed the view, in reaction to the "latest advertisement place[d] by Health . . . in the Fort Myers News Press," that "something has to be done to stop this cheap traveling medicine show from preying on an innocent but concerned health conscious public." A copy of the advertisement accompanied the letter. Both McIntosh's and Slayton's letters were placed in the investigative file in DPR Case Number 01-11408. Another letter complaining about an advertisement ran by Health was received by the Department in late May of 1989. The letter was dated May 17, 1989, and written by Luis Serentill, M.D. It read as follows: Enclosed, you will find a newspaper advertisement of Health Imaging Incorporated. This is not signed by any physician or group I know. I have been asked by many of my patients about these tests, regarding their faith in the reading and accuracy of these tests. Also, other doctors in the community have asked me what can be done about this, since we do not have any way of knowing the quality of control. I believe I talked with you about this before. I really do not know who these people are. Please, can you follow through and let me know what information you find? Thank you very much for your attention to this matter. Accompanying the letter was an advertisement that Health had run in the Charlotte Sun Herald. As a result of Serentill's letter, the Department opened a new case, DPR Case Number 89-07347, and assigned another of its investigators, J.A. Lammert, to investigate the matter. By letter dated August 16, 1989, Lammert (a) advised Petitioner that the Department had received a "complaint alleg[ing] that [he had] engaged in false, deceptive, or misleading advertising and violated a rule of the Board of Medicine, specifically provisions of Rule 21M-24.002, Florida Administrative Code," and (b) offered Petitioner an opportunity to respond to the complaint. Subsequently, on August 21 and 23, 1989, respectively, Lammert received telephone calls from Petitioner and Davidson. Subsequently, Lammert received a letter from Petitioner, dated August 23, 1989. In his letter, Petitioner stated, among other things, the following: I was first contracted by Health Imaging at the end of 1987 only to interpret vascular tests including 2-D Echocardiograms, Carotid Studies and Arterial and Venous Studies which I feel very comfortable since that is part of my training. Besides they spons[o]red one meeting about peripheral vascular disease in San Diego last February 1988. Therefore I believe the quality of their studies are compet[e]nt to do so. That is the reason I have accepted to continue interpreting their studies for a fee that I am paid on a monthly basis. On the other hand as far as the advertising in question I have been unaware of the marketing techniques of Health Imaging and I am not responsible whatsoever [for] their contents as I have never been consulted about it [and] I have never been wanting to be part of that. They have some marketing consultants to produce those ads. My name does not appear in those ads. I have never been asked to do it and on the other hand I am not aware that was a requirement of th[ese] mentioned advertisements, although I see similar ads in this area in which the name[s] of the physicians are not included. On the other hand I would not like my name included as I am not an employee, an officer, or a shareholder of Health Imaging. I am hired only to interpret the test results as I mentioned before. Once I interpret the test I send the reports immediately to Health Imaging and I am told they send them by mail to the patient[s] who are encouraged to take them to their physician[s] so they can take some action. I do not keep any records of reports I just interpret them. Therefore I cannot respond to the patient's request for interpretation although they are usually referred to Health Imaging to obtain results. As far as I am aware the people are told in lay terms the meaning of their results. On rare occasions I receive a call from their physicians in which case I have never denied and I discuss with them readily the results of the test and even give advice about it, usually by telephone conversation. But it is out of control to have discussion with the patients who are not primarily my own since I don't know anything about their medical history or other medical background. Lammert prepared a written investigative synopsis (hereinafter referred to as "Lammert's investigative synopsis") in which he made the following references to Petitioner's letter, as well as the telephone conversations he had had with Petitioner and Davidson: Response was received from Subject [Petitioner] by telephone on August 21, 1989, to the effect that he was only under contract with Health Imaging to interpret tests and had nothing whatever to do with any advertising. Subsequently, on August 23rd a telephone call was received from Mr. Davidson of Health Imaging. Mr. Davidson also stated Subject had nothing to do with any advertising and represented he would write us to this effect. On August 29, 1989, written confirmation of the earlier conversation was received from Subject; however, no further communication has been received from Mr. Davidson to date. Therefore, this file was forwarded to Legal. On or about March 9, 1990, Lynne Quimby-Pennock, a Department attorney assigned to assist in the processing of DPR Case Numbers 01-11408 and 89-07347, wrote to Connie Cheren, the Director of the Department of Health and Rehabilitative Services' Office of Licensure and Certification, requesting that she respond in writing to the following five questions: Question 1: Can a licensed laboratory offer a medical test to an individual without a referral from a physician? Question 2: Who could order the tests? Question 3: What tests can be ordered? Question 4: Could an individual ask for any study whether or not the study is indicated? Question 5: Are there any prohibitions against laboratories contracting with individuals to provide test results directly to the individual? By letter dated March 20, 1990, Cheren responded to these questions as follows: This is in response to your letter of March 9 regarding examination and reporting of clinical laboratory tests. I believe your questions are clearly answered in the law and rules with the exception of question 3 and question 4. References are as follows: Question 1: S483.181(1)&(2) Florida Statutes S483.308(2) Florida Statutes A laboratory 7/ may not perform tests without a requisition from a licensed practitioner of the healing arts. Question 2: Same as above. Question 3: There are no restrictions on the number and nature of tests which may be ordered. Question 4: The individual may request the physician to order the test but the laboratory should not perform a test requested by the patient without the physician's knowledge and consent. Question 5: S483.181(2) Florida Statutes S483.308(2) Florida Statutes S10D-41.88(2) Florida Administrative [Code] The laboratory may provide results to the patient under restricted conditions, by written authorization of the physician. There is some leeway for screening procedures and health fairs under Chapter 483, Florida Statutes, Part II. The January 28, 1991, Meeting of the Probable Cause Panel A three-member Board of Medicine probable cause panel met on January 28, 1991, to consider DPR Case Numbers 01-11408 and 89-07347. The members of the panel were James Burt, M.D., David Wertheimer, M.D., and Pamela Campbell. M. Catherine Lannon, the Chief of the Attorney General's Administrative Law Section, served as the panel's legal advisor. She advised the panel members as to what their legal obligations were under the law. Also present at the meeting were Lynne Quimby-Pennock and two other Department attorneys, Larry McPherson and Susan Lingard. Prior to the meeting the panel members had reviewed various documents they had been furnished by the Department in connection with DPR Case Numbers 01-11408 and 89-07347, including the following: McIntosh's, Slayton's and Serentill's letters of concern; the newspaper advertisements that had been sent along with these letters; Petitioner's August 23, 1989, letter to Lammert; and Lammert's investigative synopsis. During the meeting they were also made aware of the existence of Quimby-Pennock's March 9, 1990, letter to Cheren and Cheren's March 20, 1990, written response, as well as the written opinion of an "expert" that Health's advertising was "misleading." The panel, acting reasonably given the information available to it and the language of the pertinent statutory and rule provisions, voted unanimously to find probable cause and directed that an Administrative Complaint be issued against Petitioner. Its finding was memorialized in a Memorandum of Finding of Probable Cause. On March 7, 1991, the Department issued an Administrative Complaint as directed by the probable cause panel. The Administrative Complaint alleged that Petitioner should be held responsible for Health's false, misleading or deceptive advertising and, accordingly, found guilty of violating Section 458.331(1)(d), Florida Statutes (Count One), Rule 21M-24.001(2), Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes (Count Two) and Section 458.331(1)(k), Florida Statutes (Count Four). The remaining count of the Administrative Complaint, Count Three, alleged that Petitioner violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical reports and records of patient studies, which he interpreted for Health Imaging, Inc." Petitioner's Deposition On July 1, 1991, an attorney for the Department deposed Petitioner. During the deposition, Petitioner was asked questions relating to the formal charges that had been filed against him. In his responses, Petitioner indicated, among other things, the following: that he had known, early on in his relationship with Health, that Health advertised to attract business; that, in his view, the advertisements contained some claims that were medically "debatable;" that he had received $3,000.00 a month from Health for performing his duties under the Agreement, except for the first few months when he had received $1,000.00 a month; that he had been aware, at the time he signed the Agreement, that the Agreement referred to the persons whose tests he would be interpreting as Health's "patients;" that he had known that Health's technicians followed the "common practice" of administering the tests with no physician present; and that, although he had been told that he was not going to be the only physician interpreting test results for Health, he did not know the name of any other physician with whom Health had contracted to perform these services. Petitioner's deposition was transcribed. Appended to the transcript of the deposition were copies of the following three exhibits that were produced at the deposition: Petitioner's curriculum vitae; an interpretive and diagnostic report that Petitioner had prepared for one of Health's "patients;" and the Agreement with Schedule A. Bernstein's Correspondence By letter dated July 8, 1991, Stanley Bernstein, M.D., who subsequently testified as an expert witness at the final hearing in DOAH Case No. 92-4948, responded to a request for advice and information made by William Nickell, the Department attorney assigned to prosecute the Administrative Complaint that had been issued against Petitioner. In his letter, Bernstein stated the following: In regard to the allegations made about this subject [Petitioner] I shall respond as follows: The subject is unknown to me. In terms of the conditions and complaints of these patients from these laboratory tests, it is virtually impossible for the subject to give medical advi[c]e based upon these tests without a full history and examination of each individual patient. In fact the subject does state that he does not give any medical advi[c]e but only interprets the tests in a general way. The advertisements are obviously misleading. They feed on the anxieties of patients by indicating that these tests will detect all sorts of medical conditions related to the vascular system. The tests described are only adjuncts in the diagnosis of these various conditions and are never used as a primary screening tests. These tests are only necessary in specific instances when physicians feel they can contribute to the care given in any instance. Ultra sound scans and Electrocardiograms are only indicated after physicians have examined patients. Exploitation of the patient for financial gain by the subject appears obvious since the ads clearly play toward patient anxieties about physical illness. If the subject is interpreting such tests, adequate records should be kept of the follow-up of such patients. The subject was hired to read these tests purely for financial reasons since he made no examination, no diagnosis and offered no treatment in most instances. This exploitation of patients['] fears by the misleading ads obviously was for financial gain. The subject never even bothered to verify the technicians['] aptitude. The technicians appeared not to be practicing medicine. These scans are used in the practice of medicine. Records of the interpretation of these scans must be kept. It is obvious to me that this is an attempt by non physicians to exploit various tests that are now available to ai[d] in the diagnosis of vascular disease. Any well qualified and Board Certified Physician should be enjoined from reading such test in a vacuum. On or about August 20, 1991, Department attorney Arthur Skafidas, who had taken over Nickell's caseload, sent Bernstein a letter asking him to respond to a series of questions. Bernstein responded to Skafidas' request in a letter dated August 20, 1991, in which he stated the following: I shall attempt to answer the questions you have raised regarding Jorge Flores, M.D., DPR Case #89-07347 and 0111408. Since Dr. Flores was not an officer or owner of Health Imaging he was not required to determine that their advertisements were false, deceptive, or misleading from a legal point of view. However, from a moral and ethical point of view physicians are urged to refrain from associating themselves with false, deceptive, or misleading advertisements. This is an ethical issue and should be addressed. There is no evidence that Dr. Flores instigated or engaged in these false, deceptive, or misleading advertisements. Dr. Flores did have a moral and ethical obligation to make sure that the qualifications, licensure, and competency of the technicians operating the testing equipment were up to the standards of the community. Dr. Flores['] obligation and record keeping, as all physicians involved in this type of service, included his knowledge that records with his signature were available to patients or other health professionals and easily obtainable. Dr. Flores did not violate the record keeping [requirements] by sending the results back to Health Imaging. There is no evidence that Dr. Flores represented himself deceptively or fraudulently. Dr. Flores used Health Imaging to obtain patients who did not have their own physician and therefore was in somemways responsible to make sure that Health Imaging attracted these patients in an ethical manner. There is no evidence that Dr. Flores advised or assisted unlicensed persons in the practice of medicine. The October 3, 1991, Meeting of the Probable Cause Panel By memorandum dated September 5, 1991, Skafidas asked the probable cause panel that had initially considered DPR Case Numbers 01-11408 and 89-07347 to "reconsider the original decision to file an Administrative Complaint and instead direct the closing of the case without further prosecution." Skafidas gave the following explanation in the memorandum as to why he was making such a request: Dr. Bernstein, [the Department's expert] did not have access to [Petitioner's] deposition when he rendered his initial report on July 8, 1991. Upon receipt of the deposition, Dr. Bernstein was asked to re-evaluate his previous opinion. On August 20, 1991, Dr. Bernstein opined that Dr. Flores was not responsible for the advertisements, did not violate record keeping by sending the results back to Health Imaging, and did not represent himself deceptively or fraudulently. A supplemental investigation was requested to attempt to locate Health Imaging, Inc. The investigation revealed that Health Imaging has been defunct for over one (1) year. Without testimony from Health Imaging, Inc., it will be impossible to controvert Dr. Flores' testimony and to successfully prosecute this case. Dr. Bernstein's expert opinion rendered on August 20, 1991, states that Dr. Flores should ethically refrain from associating himself with false, deceptive, or misleading advertisements. Pursuant to Skafidas' request, the probable cause panel met on October 3, 1991, to reconsider DPR Case Numbers 01-11408 and 89-07347. The members of the panel were James Burt, M.D., Gopal Basisht, M.D., and Pamela Campbell. M. Catherine Lannon served as the panel's legal advisor. As she had done at the January 28, 1991, meeting, Lannon advised the panel members as to what their legal obligations were under the law. Also present at the meeting was Department attorney Lynne Quimby- Pennock. Prior to the meeting the panel members had reviewed various documents they had been furnished by the Department in connection with the cases under review, including the following: McIntosh's, Slayton's and Serentill's letters of concern; the newspaper advertisements that had been sent along with these letters; Davidson's April 4, 1989, letter to Clyne; Clyne's investigative report; Petitioner's August 23, 1989, letter to Lammert; Lammert's investigative synopsis; the Administrative Complaint that had been issued against Petitioner; the transcript of Petitioner's July 1, 1991, deposition, with exhibits attached; Bernstein's July 8, 1991, letter to Nickell; and Bernstein's August 20, 1991, letter to Skafidas. The issues raised in DPR Case Numbers 01-11408 and 89-07347 were discussed and debated at length by the panel members at the meeting. Lannon and Quimby-Pennock also participated in the discussion and debate. On several occasions during the meeting, Quimby-Pennock expressed the opinion that there was insufficient proof available for the Department to prevail in an administrative hearing on the charges against Petitioner that were under consideration. The panel voted unanimously to direct that the Administrative Complaint that had been issued against Petitioner be amended in such a manner as to delete the advertising-related charges 8/ and add the charge that Petitioner, in his dealings with Health and their "patients," violated Section 458.331(1)(f), Florida Statutes. In directing that this charge be added to the Administrative Complaint and that the alleged Section 458.331(1)(m) recordkeeping violation remain, the panel acted reasonably given the information available to it and the language of the statutory provisions in question. On February 10, 1992, an Amended Administrative Complaint was issued alleging that Petitioner violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc." (Count One) and that he "aided, assisted and advised unlicensed persons to practice medicine contrary to [Section 458.331(1)(f)], Florida Statutes, by interpreting patient studies for Health Imaging, Inc., an unlicensed pseudo medical facility" (Count Two). Petitioner denied the allegations of wrongdoing made in the Amended Administrative Complaint and requested a formal hearing. On August 14, 1992, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested. The matter was docketed as DOAH Case No. 92-4948. The formal hearing in DOAH Case No. 92-4948 was held on November 13, 1992. The Hearing Officer issued his Recommended Order in DOAH Case No. 92- 4948 on January 13, 1993. The Hearing Officer recommended that the Board of Medicine dismiss both counts of the Amended Administrative Complaint. Count One of the Amended Administrative Complaint was addressed in Conclusions of Law 27 through 30 of the Recommended Order, which read as follows: Count One of the Amended Administrative Complaint alleges that Respondent violated 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc." Section 458.331(1)(m), Florida Statutes, authorizes the Department to discipline a Florida-licensed physician for "[f]ailing to keep written medical records justifying the course of treatment of the patient." The duty imposed by Section 458.331(1)(m), Florida Statutes, to maintain medical records therefore applies only to a physician who administers "treatment" to a patient. If there is no course of treatment prescribed, then there is nothing for which the physician needs written justification under Section 458.331(1)(m), Florida Statutes. See Breesmen v. Department of Professional Regulation, 567 So.2d 469 (Fla. 1st DCA 1990). In the instant case, it has not been established by even a preponderance of the evidence that Respondent was the treating physician of any test taker at the time he interpreted that individual's test results pursuant to his written agreement with Health. Absent such a showing that any test taker was then under Respondent's care and treatment, the evidence must be deemed insufficient to prove the allegation made in Count One of the Amended Administrative Complaint that Respondent violated Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc." 9/ Count Two of the Amended Administrative Complaint was addressed in Conclusions of Law 31 through 38 of the Recommended Order, which read as follows: Count Two of the Amended Administrative Complaint alleges that Respondent [Petitioner in the instant case] "aided, assisted, and advised unlicensed persons to practice medicine contrary to [Section 458.331(1)(f)], Florida Statutes by interpreting patient studies for Health Imaging, Inc., an unlicensed pseudo medical facility." Section 458.331(1)(f), Florida Statutes, authorizes the Department to discipline a Florida-licensed physician for "[a]iding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board." To establish a violation of Section 458.331(1)(f), Florida Statutes, the Department, as a threshold requirement, must prove that the unlicensed person(s) identified in the administrative complaint actually engaged in the "practice of medicine," as that term is defined in Section 458.305(3), Florida Statutes, which provides as follows: "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition. In the instant case, the unlicensed persons that, according to the Amended Administrative Complaint, Respondent allegedly "aided, assisted and advised" were Health and its staff, specifically its technicians. The Department, however, has failed to demonstrate by even a preponderance of the evidence that these persons engaged in any activity falling within the definition of the "practice of medicine" set forth in Section 458.305(3), Florida Statutes. While Health's technicians may have administered tests used to evaluate the test taker's physical condition, in so doing they did not engage in the "practice of medicine," within the meaning of Section 458.305(3), Florida Statutes, given the nature of these tests. See Lambert v. State ex rel. Mathis, 77 So.2d 869 (Fla. 1955); Rush v. City of St. Petersburg, 205 So.2d 11 (Fla. 2d DCA 1967). In its proposed recommended order, the Department argues that the technicians did more than merely administer these tests. It contends that they also exercised discretion requiring medical expertise "in selecting which tests to employ and on whom" and thereby "engaged in the unlicensed practice of medicine." The record, however, is devoid of any persuasive, competent substantial evidence that would support a finding that the technicians were in any way involved in the test selection process. In view of the foregoing, Respondent may not be found guilty of the violation alleged in Count Two of the Amended Administrative Complaint. The Department filed exceptions to the Recommended Order. In the Final Order it issued on April 13, 1993, the Board of Medicine disposed of these exceptions in the following manner: [The Department's] Exception Number 1, which is to paragraphs 29 and 30 of the Conclusions of Law is ACCEPTED as to paragraph 29. The Board finds that there was a physician-patient relationship between Respondent and the patients whose tests he read. [The Department's] Exception Number 2, which is to paragraphs 36 and 37, is REJECTED. The Board "approved and adopted" the Hearing Officer's Findings of Fact and "incorporated" them in its Final Order. With respect to the Hearing Officer's Conclusions of Law, the Board stated the following in its Final Order: The Board, in its ruling on the Exception to paragraph 29, granted that exception and to that extent rejects the contrary Conclusion of Law by the Hearing Officer. Further, the Board finds that Section 458.331(1)(m), F.S., does not apply only to physicians who administer treatment to patients, but applies to all physicians who participate in the "course of treatment." The course of treatment includes the diagnostic phase of the practice of medicine. That this is so is evident if one reviews the entire statutory provision at issue rather than omitting the ending as the Hearing Officer did. At the relevant time period, Section 458.331(1)(m), F.S., provided, that a physician could be disciplined for "[F]ailing to keep medical records justifying the course of treatment, including, but not limited to, patient histories, examination results, and test results." Based on this reason, the Board rejects the Conclusion of Law in paragraph 30 of the Recommended Order. In all other respects, the conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein. Notwithstanding that the Board rejected the Hearing Officer's Conclusion of Law 30, in which the Hearing Officer concluded that the evidence was "insufficient to prove the allegation made in Count One of the Amended Administrative Complaint that Respondent violated Section 458.331(1)(m), Florida Statutes, by 'fail[ing] to keep medical records of patient studies, which he interpreted for Health Imaging, Inc.,'" it nonetheless, without any further explanation in its Final Order, "accepted and adopted" the Hearing Officer's recommendation that both counts of the Amended Administrative Complaint, including Count One, be dismissed. The Board's Final Order was filed with the Clerk of the Department on April 26, 1993.
Findings Of Fact Josefino P. Bargas, M.D., is a medical doctor licensed and authorized to practice medicine in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the standards of medical practice required of licensed physicians in the State of Florida enumerated in Chapter 458, Florida Statutes (1981), and with regulating the licensure status of medical doctors in the State of Florida. The Respondent is a native of the Philippines, receiving his medical training at Manila Central University with his degree being awarded in 1965. Upon arriving in the United States, he passed appropriate examinations and was admitted to internship at St. Vincent's Hospital in Cleveland, Ohio, and at St. John's Hospital in Cleveland, Ohio, for residency. The Respondent later came to Williston, Florida, and passed the appropriate state board examinations and was admitted to general practice and family practice. He has performed medical practice in those areas of practice since 1977, and is on the staff at Williston Memorial Hospital. He entered private practice in Williston in approximately 1978. In his practice in the Williston area, he has performed extensive medical examinations and physicals for school board employees and school students in Levy County with no impropriety ever being reported. As pertinent hereto, during the course of his practice, he obtained a contract to provide primary care and physical examinations for the Lancaster Correctional Institute, serving as a physician at that facility two days per week, approximately one hour per day, for several years. Pursuant to the direction of Captain H. E. Gamble, the gentleman in charge of security personnel at the Lancaster Institution and Pat Sheppard, a registered nurse supervising the nursing staff, or either of them, Corrections Officer II James L. Fales on several occasions, including but not limited to April 26, 1982, and April 29, 1982, positioned himself in a crawl space above the suspended ceiling directly above the medical examination room of the Respondent at Lancaster Correctional Institution with the purpose of observing the Respondent as he treated various inmates in the course of his medical practice. Although Officer Fales supposedly removed a 12-inch by 18-inch ceiling tile directly over the Respondent's desk or examining table for purposes of making his observations, the Respondent established that the only missing ceiling tile was one in the corner of the ceiling of the examining room which had been removed a substantial period of time prior to the dates pertinent hereto, apparently for the purpose of repair work in the space above the ceiling. In any event, it came to pass that on April 26, 1982, with Officer Fales clandestinely observing medical examinations from his post in the ceiling, the Respondent was scheduled by the medical staff (Nurses Vann and Sheppard) to see an inmate by the name of Lopez. The Respondent had seen Lopez on numerous previous occasions and had never determined anything medically wrong with that inmate and had so indicated to Nurse Sheppard and had recorded his impressions on the inmate's medical chart and records. The Respondent believed Lopez to be a malingerer. The Respondent was aware of no medical reason for Lopez being sent to his examining room that morning. At the conclusion of the medical examination of Inmate Lopez, Inmate Lopez revealed to the Respondent that he was a homosexual and he engaged the Respondent in a conversation attempting to "talk out or air his problem." At the conclusion of that conversation, Inmate Lopez attempted to elicit a response from the Respondent by leaning in his direction as if to kiss him. The Respondent did not react to Lopez's actions in any way nor did he solicit them. 1/ On April 29, 1982, the Respondent's next scheduled visit date to the Lancaster Correctional Institution, Officer Fales was again placed in the ceiling above the medical examination room, supposedly armed with a 35mm Canon AE-1 camera. The Respondent had been scheduled by Nurse Gail Vann, LPN, to perform examinations and/or physicals of three inmates that morning. The Respondent requested the presence and assistance of a member of the nursing staff in the examining room, but was refused. The Respondent made a practice of requesting the presence of a nurse, male or female, in the examining room at all times when he was performing his duties at the institution for, in his own words, "the protection of myself and the inmates." Inmates at the prison customarily have a physical examination once per year. Inmate Daly was due for his physical in approximately March of 1982, as established by Petitioner's own witnesses Nurses Sheppard and Vann. The medical section had been shorthanded since approximately October of 1981, and no physical examinations had been performed since that time. On April 29, however, of the three inmates whom the Respondent saw in his office, only Inmate Daly was there for a physical examination. The other two inmates had legitimate medical complaints. No other inmates were scheduled that day, one of two days per week the doctor visited the institution, for physicals in spite of the fact that no inmates had received physicals for the period from October, 1981, to the date when George Daly was sent to the doctor's office. The Respondent had seen Inmate Daly approximately 25 times since he began practicing at the institution in November of 1980, and there were 141 medical record entries regarding Inmate Daly since he came to the Lancaster Institution (many of which did not involve visits with the doctor). Nurse Sheppard, Captain Gamble and Nurse Vann had never before scheduled Inmate Daly for a physical with the Respondent, with no other staff present or otherwise, until the date in question. Nurse Sheppard admitted that she contacted Captain Gamble and conferred with him regarding the planned observation of the doctor's activities on the day in question and she and Gamble decided that the clandestine observation would be done that day. Nurse Sheppard supervised all nurses at the institution. She assigned Nurse Vann to assist Dr. Bargas on April 29, 1982, when Dr. Bargas requested that Nurse Vann or another staff member be present in the examining room. Nurse Vann later informed him that she was required to take medication to the confinement building for administration to inmates and refused to assist him on the occasion in question. The evidence does not reflect whether this decision to leave the clinic and perform duties in the confinement building was her own decision or Nurse Sheppard's. On April 28, 1982, Nurse Vann "wrote-up" George Daly's forthcoming visit to the Respondent for the next morning on April 29, 1982. On that medical history form she did not indicate any symptoms he was suffering or any reason for the appointment. The doctor arrived at his clinic at approximately 9:00 on the morning of April 29, 1982. He requested Nurse Vann to assist him and she informed him that she had to go to the confinement building to administer medication and that "Mrs. Sheppard is not here." The doctor proceeded with his first two patients, one of whom requested treatment for venereal warts. Nurse Vann did the pre-visit "work-up" on all three patients and knew the complaint of the first patient. The Respondent was unable to treat that patient because he required the assistance of a nurse in order to do so. Nurse Vann, knowing the required treatment for that patient, was, however, unavailable for assisting the Respondent for that or any other patient that day. The second patient merely required medication to relieve the symptoms of a cold. The third patient was George B. Daly. When ready to see the third patient, George Daly, he again asked for help from Mrs. Vann, who had not left the clinic as yet. She however insisted on leaving for the confinement unit. The Respondent does not know how Daly got into his examination room. The chart given him, or history form, indicated no symptoms and Daly, when asked by the Respondent, did not reveal any symptoms, he merely said "they sent me here." The Respondent was not supplied the entire physical examination and medical history form along with Daly's visit. There was no medical history form in Daly's file when Respondent got it upon seeing Daly in his office. In any event, although the Respondent did not ask him to disrobe, Daly had already removed his shirt so the Respondent checked his ears, nose, throat and lungs in a routine manner as in any physical examination. The Respondent then turned around to look at his file, telling Daly he could get dressed. When he turned to look at Inmate Daly again, Daly had lowered his pants and displayed his erect penis to the Respondent and demanded that the Respondent perform an oral sexual act for him. The Respondent repeatedly refused. At that point, George Daly grabbed the Respondent's head and attempted to force him into performing such an act, which the Respondent successfully resisted. At that point Captain Gamble, the head of security, burst through the door saying that other officers had told him that "this was consensual." The Respondent denied it and has vigorously denied that ever since. The Respondent was detained for some three hours at the prison and made to wait until a Department of Corrections investigator came to the facility to interview him, during which time he was allowed to consult his lawyer. The reason for his detention has not been disclosed. George Daly was immediately removed from the examining room when Captain Gamble and others burst in and that same day, was transferred to another facility of the Department of Corrections in Indian River County. Shortly after his transfer to that other facility, George Daly was awarded work-release privileges. As found previously, Officer Fales was in the ceiling observing through the hole where the ceiling tile was removed during the encounter between the Respondent and George Daly. The ceiling tile, however, had been removed sometime previously back in the corner of the room and Officer Fales was not located directly above the desk or examining table and the Respondent's back was to him during that observation (contrary to his testimony). Even had the Respondent placed his mouth in contact with the sexual organ of the inmate, George Daly (as Fales maintained), Fales would not have been able to see nor take pictures of that actual contact. Officer Fales represented that he took six pictures with a Canon AE-1 35mm camera, each picture accompanied by the ignition of the flash attachment of the camera. Officer Fales maintained that he observed no reaction to the sound of the camera and the flash of light by the occupants of the room below him. Neither Officer Fales nor the Petitioner produced any pictures of such activity at the hearing, Officer Fales merely representing that the supposed pictures had failed to develop properly. Only Nurse Sheppard and Captain Gamble were aware of Officer Fales being in the ceiling observing the Respondent. The Respondent was aware that Nurse Sheppard and Captain Gamble were involved in a close personal relationship prior to the time of the April 29, 1982, incident, her marriage later being dissolved. He observed Nurse Sheppard and Captain Gamble in intimate physical contact (holding hands, embracing) both in the clinic, where Captain Gamble's duties did not require him to be, in a local shopping mall, as well as at Cedar Key. Nurse Sheppard was aware that the Respondent knew of her relationship with Captain Gamble. It is accordingly found that the testimony of Officer Fales and Nurse Sheppard regarding their suspicions of the Respondent's reported homosexual activity as being a basis for their conducting the observation of the Respondent and George Daly on April 29, 1982, and the circumstances of that observation is not credible. The Respondent has never, throughout his professional career, had any suggestion of homosexual involvement or other sexual misconduct in the course of his practice (or otherwise) attributed to him. His medical practice has been consistently characterized by a high degree of professional skill, care and concern for his patients, as well as personal integrity. Accordingly, it is found that Inmate Daly, who was present in the examining room on the day in question for reasons known only by Captain Gamble, Nurse Sheppard, Officer Fales or Nurse Vann, made a homosexual advance to the Respondent, in which the Respondent did not participate, which he successfully resisted and which was not due to any suggestion or solicitation by the Respondent whatever.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That Counts I, II, III, and IV be dismissed and that no disciplinary action is warranted nor should be taken against the Respondent. DONE and ENTERED this 23rd day of June, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1983.
The Issue The issues to be determined are whether Respondent engaged in sexual misconduct and/or sexual activity in the practice of medicine in violation of section 456.072(1)(v), Florida Statutes (2019); and, if so, what is the appropriate sanction.
Findings Of Fact Stipulated Facts The Department is the state agency charged with regulating the practice of medicine in Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondent was a licensed medical doctor in the State of Florida, having been issued license number ME 43566. Respondent's address of record with the Department is 601 East Sample Road, Suite 105, Pompano Beach, Florida 33064. Respondent, at all times material to this case, had medical staff privileges at North Broward Hospital located at 201 East Sample Road, Pompano Beach, Florida 33064. Respondent, at all times material to this case, also worked at Broward Specialty Group located at 4515 Wiles Road, Suite 201, Coconut Creek, Florida 33073. On or about September 7, 2019, S.L. presented to the emergency room at North Broward Hospital with symptoms of colitis of the sigmoid colon. S.L. was consulted by the attending physician to attend to her as her gastroenterologist. Respondent performed an abdominal exam on S.L. on September 7, 2019. During the exam, Respondent palpated S.L.’s abdomen. On or about September 8, 2019, Respondent performed another abdominal exam on S.L. During Respondent’s examination, he palpated S.L.’s abdomen. On or about September 13, 2019, S.L. presented to Broward Specialty Group for a follow-up examination. Respondent performed another abdominal exam on S.L. at that time. A physician intentionally touching a patient’s breasts is not within the scope of an abdominal examination. Intentionally touching a patient’s breasts is outside the scope of generally accepted abdominal examination performed by a gastroenterologist. Respondent had no medical reason to touch S.L.’s breasts on September 7, 2019; September 8, 2019; and/or September 13, 2019. No physician may engage in sexual misconduct with his or her patient. Additional Findings of Fact Respondent, 72 years old, was born in 1947 and grew up, and went to school, in a small village in India. He wanted to become a physician because there was no doctor in his village. Dr. Gupta then moved and graduated from medical school in Rajasthan.1 He completed his residency and two years of a fellowship in gastroenterology in Pittsburgh, and his training concluded in 1983. Respondent has lived in South Florida since 1984. He has been married to his wife for 44 years2 and she is also a physician. He has three children, ages 42, 36, and 32, and all are also physicians. He has six grandchildren. He lives with his wife, his son, and four grandchildren. When his brother’s wife unexpectedly died, Dr. Gupta and his wife began caring for his brother’s three children, who then were 2, 6, and 9. Those children are now grown, with two being physicians and one an attorney. All practice in South Florida. 1 The hearing Transcript incorrectly indicated Pakistan. 2 The hearing Transcript incorrectly indicated 34 years. Dr. Gupta practices in both the office and North Broward Hospital. He has medical staff privileges in gastroenterology at Broward Health North and has held those privileges since 1984. His privileges have been renewed every two years since 1984. Dr. Gupta described an abdominal exam as a four-quadrant exam where he feels for the spleen and liver in the left upper quadrant. Dr. Gupta also asks patients to take a deep breath to facilitate feeling the spleen in the left upper quadrant and to facilitate feeling the liver in the right upper quadrant. Dr. Gupta has performed tens of thousands of abdominal exams during his more than 40-year career. Dr. Gupta performs abdominal exams in a routine fashion, and there is no difference between the abdominal exams he performs in the office and in hospital settings. The exams are so routine for him that they are just automatic. Dr. Gupta had no independent recollection of S.L., and his testimony was based both upon his routine pattern of practice over 40 years and S.L.’s medical records. Respondent first provided care to S.L. on September 7, 2019, at North Broward Hospital, upon request for gastroenterology consultation. S.L. was on a regular level floor in a double-bedded room. Respondent’s routine practice is to review the patient’s chart and presentation and speak with the nurse involved with the patient’s care to learn about any complaints. Respondent then invites the nurse to join him during the examination, and, if free, the nurse will join him in the patient’s room. Respondent’s practice is to always leave the hospital door open when he sees a patient in the hospital. This is to allow entry and exit by staff related to care for the patient and/or the other patient in the room, as well as their respective family members. At no time during this visit did Respondent touch S.L.’s breasts, as he testified: Q. Since you have no independent recollection of the exam, how can you be sure you didn’t touch her breasts? A. It doesn’t matter whether there’s recollections or not or whether chart or not. I don’t touch patient’s breasts. Respondent next provided care to S.L. on September 8, 2019, at North Broward Hospital, and, again, the door remained open for the duration of the visit. Respondent entered the room, asked S.L. about the progress of her symptoms, and then performed the same four-quadrant abdominal examination and answered any questions. Respondent described the left upper quadrant of a patient as where the spleen lies. When a patient takes a deep breath, it expands the chest wall and lowers the diaphragm, which moves the spleen, so the edges can be felt. The right upper quadrant is where the liver lies and with deep inspiration, the chest expands and lowers the diaphragm and moves the liver, so the liver edge and tenderness can be felt. Respondent did not touch S.L.’s breasts on September 8, 2019. Even though he does not specifically recall the visit, he is certain that he did not touch S.L.’s breasts. As he testified: Q. Again, how can you be certain if you don’t really remember this visit? A. I am certain because it’s not part of the examination, or [sic] it’s not me. There’s no reason to touch S.L.’s breast. Breast is not a part of the examination. And I don’t need any chart, or I don’t need any recollection for that exam. Respondent next evaluated S.L. at his office, Broward Specialty Group, on September 13, 2019, during a follow-up examination. Respondent was accompanied by his scribe, Ms. Elisa Ramirez, for the entirety of the visit. The examination took place in a small exam room. During the exam, Ms. Ramirez was located approximately five or six feet away from Respondent. Ms. Ramirez testified that she is curious, observant, and wants to go to medical school upon her graduation from college in December 2020 with a degree in biology. She closely watches and listens to Respondent, asks a lot of questions, and Respondent teaches her. At the time of this third visit, S.L. was doing well and had been discharged from the hospital. Respondent performed an examination similar to the examinations he performed in the hospital. As he testified, at no time during this visit on September 13, 2019, did Respondent touch S.L.’s breasts: Q. During this visit, did you touch Patient S.L.’s breast? A. Absolutely not. I did not touch her breast neither on the 7th, 8th, or 13th. It is not part of the examination, and it’s not me. I am a Hindu person … . I go to the temple. I am on the board of trustees at the temple. And to--touching a breast is demeaning, disgraceful and unsocial [sic]. I have beautiful family. I have loving wife. I have lovely daughter. I have granddaughters … Absolutely not. It’s not me. Respondent repeatedly and consistently stated that he did not touch S.L.’s breast and that such is not part of the gastroenterological examination or evaluation: Q. Dr. Gupta, we noted you testified you do not remember the actual three visits with this patient. But just for clarity, can you let the Court know whether or not you touched this patient’s breasts? A. I did not touch this patient’s breasts … .There is no way I can demean or I can degrade any woman. I did not touch Ms. S.L.’s breast on 7th, 8th or 19th [sic]. I am sorry. I did not do it, and I don’t do these things. As mentioned in paragraph 26 above, Ms. Ramirez serves as Respondent’s scribe. In addition to her note-taking duties, she sometimes performs medical assistant duties. These consist of helping get patients ready and in a room, and asking them questions in advance of Dr. Gupta’s entering the room to see the patient. She then goes into the room with Respondent to document what the patient says, what Dr. Gupta says, and creates a medical note from the conversation and examination. Ms. Ramirez specifically recalls the visit of S.L. on September 13, 2019. She specifically remembers S.L., the exam room she was in, and the shirt S.L. was wearing. Ms. Ramirez specifically described the layout of the examination room, which was room number three. Ms. Ramirez testified that she, Respondent, and S.L. were in an L-shaped configuration in the room. She was standing at a counter in the room, with her laptop on the counter, Respondent was seated on a stool, and S.L was in an exam chair. Ms. Ramirez testified that she watched the entire time Respondent performed the physical exam of S.L. She was located approximately five to six feet away from S.L. Ms. Ramirez testified that at no time did she see Respondent touch S.L.’s breasts. At no time during the examination did she see Respondent inappropriately touch S.L. Ms. Ramirez stated that, based upon her experience with Respondent, it was a pretty normal interaction and there was nothing out of the ordinary. She admitted that she was not watching at some points during the visit, but that occurred only after Respondent had completed his physical exam of S.L. S.L.’s testimony tells a different story. She first saw Respondent on September 7, 2019, while an inpatient at North Broward Hospital. S.L. testified that her room was near the nurse’s station. During Respondent’s examination, she had a roommate (another patient) present in her room. S.L. testified that she did not tell anyone that Respondent had allegedly touched her breasts during the examination that day. S.L. saw Respondent again, in the same hospital room, on the following day of September 8, 2019. Again, the other patient was present in a bed next to her. S.L. testified that Respondent touched her breasts during this second abdominal examination. S.L. testified that she did not react in any way to Respondent’s examination and did not tell anyone about any alleged inappropriate touching by Respondent. S.L. testified that she was told she needed to follow-up with a doctor in three to five days. She stated that she selected Respondent to follow-up with because he was her doctor in the hospital and she believed it would be nearly impossible to find another gastro-intestinal (“GI”) doctor in the short time frame. S.L. testified that, at the time of examination in the office on September 13, 2019, Respondent entered the room with another “girl” who had a laptop. S.L. testified that, during her visit with Respondent on September 13, 2019, at his office, she did not specifically observe the other person in the room (Ms. Ramirez) for the entire time during the visit. She did not testify that the assistant was not in the room the entire time. S.L. testified that, as of the date of her appointment on September 13, 2019, she did not report to anyone that Respondent had touched her breasts during her first, second, or third examinations. S.L. testified that, when she was in the hospital, her room door remained open on both occasions that Respondent examined her. She stated that nursing staff and others would come see her throughout the day while she was a patient in that room. S.L. testified that nursing staff also would come in during the day to see the other patient, who was in the room with her. S.L. testified that, from her bed, she could see out of the door. S.L. testified that one day prior to seeing Respondent at his office on September 13, 2019, she saw her primary care physician and did not inform him of any alleged events in the hospital. S.L. testified that her primary care physician offered her three GI physicians that she could go and see. Her primary care physician was almost confrontational about her seeing one of the three GI physicians he recommended. S.L. testified that she had told her primary care physician that notwithstanding the names he had provided, she was going to see Respondent on the following day. S.L. did not contact any of the three to see if they would be available for a consultation that next day or shortly thereafter. She did state that she sought an appointment with one of the three recommended GI physicians after her third visit with Respondent on September 13, 2019. S.L. subsequently saw her primary care physician, Kenneth Burke, M.D., and, for the first time, discussed the alleged encounters with Respondent. S.L.’s version of her examinations by Dr. Gupta is quite different from Respondent’s account. She testified that during the course of her abdominal examination on September 7, 2019, Respondent lifted her camisole to expose her abdomen and palpated her abdomen in a circular direction, starting with the upper left quadrant and working towards the lower left side, then the lower right quadrant and working towards the upper right quadrant. Respondent, she said, next placed his hand underneath S.L.’s camisole and underneath the elastic of her shelf bra and placed his bare hand on her bare left breast and, under the guise of continuing his examination, asked her to take a breath. Respondent then moved his hand to S.L.’s right breast and asked her to take another breath, she stated. She claims she felt uncomfortable when Respondent touched her breasts, but trusted Respondent and assumed he needed to touch her breasts as a part of her abdominal examination. She did not report Respondent’s alleged touching of her breasts to anyone on that day. S.L.’s account of the examination on September 8, 2019, was identical to the previous day’s examination, with the exception of Respondent first placing his hand on her right breast while asking her to take a breath, then moved to her left breast with a similar request that she take a breath. She did not report Respondent’s alleged touching of her breasts to anyone on that day. S.L.’s account of her visit to Respondent’s medical office on September 13, 2019, was similar to her account of the two hospital visits by Dr. Gupta on September 7 and 8, 2019. She was not in pain on that date. She again testified that Respondent performed his examination by reaching under her clothing, and, during its course, first placed his hand on her bare right breast and asked her to take a breath, then performed the same touching of her bare left breast and asked her to take a breath. She noted that Ms. Ramirez was in the room during the September 13, 2019, examination. She believed that Ms. Ramirez could not see the alleged improper touching because Respondent’s hand was under S.L.’s clothes throughout the abdominal examination. S.L. testified that, after the September 13, 2019, examination, she felt uneasy about Respondent’s conduct and no longer believed his behavior was appropriate in a medical examination. She confirmed that she then spoke with Dr. Burke who, after hearing her account of Respondent touching her breasts during an abdominal examination, suggested she file a complaint with the Department. Although he could not recall the exact details of his examination of S.L., due to the large number of abdominal examinations he regularly performs, Dr. Gupta’s account of his examinations of S.L. was clear, concise, credible, and given without hesitation. His record as a physician, as emphasized by his testimony at hearing, supports that touching a woman’s breasts during an abdominal examination is not acceptable and not part of the routine four-quadrant examination that he has performed thousands of times. Moreover, Ms. Ramirez was present during the September 13, 2019, examination of S.L. Her testimony was, similarly, clear, concise, credible, and given without hesitation. While she is a loyal employee of Dr. Gupta’s and hopes to go to medical school upon her graduation from college, no evidence of her being untruthful or of fabricating any part of her account was offered, other than an unsupported conclusion that she stands to lose in this situation if she were to admit that Respondent improperly touched S.L.’s breasts during an abdominal examination. S.L.’s testimony also was clear, concise, credible, and given without hesitation. She recalled the facts as she presented them as if the events had just happened, making this a clear case of “she said, he said.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Complaint. DONE AND ENTERED this 18th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of December, 2020. COPIES FURNISHED: Amanda M. Godbey, Esquire Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Gregory A. Chaires, Esquire Richard Jay Brooderson, Esquire Chaires Brooderson & Guerrero, P.L. 283 Cranes Roost Boulevard, Suite 165 Altamonte Springs, Florida 32701 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3565 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
