Findings Of Fact Patient D.R., was born in 1958. She first presented to Respondent's group practice in 1987. D.R. had a history of a bleeding disorder and wanted one of Respondent's associates to follow her Coumadin treatment. The bleeding disorder was related to a rare condition, Klippel-Trenaunay Weber Syndrome, which is characterized by an abnormality of the bones and muscles in the extremities resulting in multiple deep vein thrombosis. An orthopedic physician in a separate practice followed her treatment for severe scoliosis. D.R. also suffered from secondary tension headaches and depression along with her multiple medical problems. She was in constant pain. D.R.'s husband was in the Navy. From the beginning, Respondent's associate worked with a psychologist in an attempt to get the Navy Family Service Center to accept D.R. as a client for family and marital counseling. In April, 1987, D.R. complained of tendonitis of the lower bicep region in the left arm. D.R.'s treating physician referred her to Respondent for consultation as to whether D.R. was suffering from a deep vein thrombosis. In May of 1987, D.R. was referred to a vascular surgeon. In September of 1987, a surgeon at the Naval base performed a hysterectomy on D.R. because her anticoagulant therapy resulted in dysfunctional uterine bleeding. In November of 1987 D.R. underwent orthopedic surgery to stablize her scoliosis. Depending on D.R.'s complaint on each office visit, Respondent's associates prescribed Xanax, Valium, Tylox, Demerol, Darvocet, Vistaril, Motrin, Persantin, Phenergan, Flexoril, Septra, and Coumadin. D.R. continued to receive services from the group practice until March, 1988, when she requested that Respondent serve as her primary attending physician. When Respondent began his care of D.R., she was already taking Vicodin two to three times per week, and Coumadin for hypercoagulaopathy. In April, 1988, D.R. complained of increasing pain in her back and head. She had increased her use of Vicodin with no relief. Respondent switched her medications to 5 mg of Methadone every twelve (12) hours for pain. D.R. also received office injections of Demerol and Phenergan for immediate relief of her pain. The Methadone seemed to work "very well" in relieving D.R.'s back pain. Respondent continued to prescribe this medication for the next several months. For a period of time in June of 1988, Respondent terminated D.R.'s use of Amitriptyline. Other physicians had prescribed this drug for D.R. for four years and she was showing some side affects. Respondent changed D.R.'s medication to another antidepressant, Prozac, and the depression subsided. Respondent prescribed several different medications, including Elavil, Motrin, Imipramine, Vistaril and Demerol, to relieve the patient's recurrent headache pain, through the summer of 1988. At one point, Respondent appropriately recognized the signs of dependency and refused to give D.R. a two month refill of Dolophine to take with her on an alleged two (2) month vacation. Toward the end of July, 1988, D.R. overdosed on Xanax and experienced hallucinatory feelings. In August, 1988, Respondent discussed the increased use of medications with D.R. and referred her to a psychologist for counseling. Respondent also informed D.R. that she needed to enter an inpatient setting such as Charter-by- the-Sea. He also changed the time that D.R. could receive any medications to every other week to control her intake. D.R. subsequently entered Charter-by-the-Sea for inpatient treatment. Upon her discharge, D.R. left Respondent's care to move to California. At the time she left, Respondent provided D.R. with a one (1) month supply of Demerol and Motrin for pain. D.R. was already taking opioids when Respondent agreed to be her physician. He immediately began a program of controlling her intake of pain medication. Although Respondent only treated D.R. for six (6) months, he made appropriate referrals to a psychologist and to an inpatient detoxification program. There was no need for Respondent to refer D.R. to an addictionologist until such time as she appeared intoxicated and hallucinating in July of 1988. At that point, Respondent properly hospitalized D.R., transferring her to the care of experts. There is no persuasive record evidence that a referral to a psychiatrist was appropriate for D.R. Respondent made the appropriate assessment, diagnosis, and referrals for D.R. Additional consultations or referrals were not required. Respondent's treatment of D.R. met the level of care and skill which is recognized as acceptable under similar conditions and circumstances. CHRONIC PAIN MANAGEMENT Respondent did not use narcotics to treat the above referenced patients in an unorthodox, illegal, non-indicated, substandard manner. Methadone is often used for detoxification purposes. However, it is also indicated for "relief of severe pain." Physicians may dispense Methadone from any licensed pharmacy for analgesic purposes. C.A., C.B. C.M., and D.R. were suffering from chronic severe pain when Respondent began treating them. Therefore, Methadone was an appropriate part of their treatment program. There is no persuasive evidence that Respondent used Methadone with his patients for detoxification purposes. Certain chronic pain patients respond satisfactorily to long-term opioid therapy, especially when no other treatment works for them. With the opioid treatment, these patients are able to function socially and participate in other modes of recommended treatment. Respondent's patients in this case fit this profile. They were in the one percent of the most difficult patients that one encounters. Additionally, these four patients represented only a fraction of a percent of Respondent's practice. There is no persuasive evidence that Respondent engaged in a pattern of improper chronic pain treatment. Some physicians prefer to routinely use a multi-disciplinary approach to chronic pain treatment regardless of the severity and complexity of their patients' medical problems. They refer their chronic pain patients to neurologists, psychiatrists, psychologists, and occupational and physical therapists for extensive, expensive long-term care. However, a considerable percentage of patients treated under the multi-disciplinary approach still require long-term opioid treatment because it is the only way to keep the patient sufficiently functional to participate in the multi-disciplinary treatment. All four of Respondent's patients improved for various periods of time while under Respondent's care. They were able to cope with serious episodes of pain and able to expand their function. Unfortunately, there was no cure for any of the conditions from which these four patients suffered. Family physicians can manage such patients expertly if they: (a) are well informed about the use of opioids for analgesic purposes; (b) know their patients' medical history; (c) determine that the benefits of the treatment outweigh the risks; (d) establish a therapeutic relationship with the patient; (d) develop a treatment plan, (e) prescribe the drugs in a prudent manner, and (f) monitor their patients closely. Respondent met these criteria for each of the four patients discussed above. Respondent accepted an provided comprehensive treatment for each of the four (4) patients for comprehensive treatment with the following understandings: (1) no other physician would prescribe opioids; (2) Respondent would determine the appropriate dosage; (3) the patient would keep appointments at regular intervals; and (4) the patient would seek consultations with other professionals when appropriate. Throughout the treatment periods, Respondent appropriately considered whether the drugs were relieving his patients' pain and whether their level of function was improving. Respondent's treatment plans were flexible enough to prevent damage if a patient became noncompliant. Without this flexibility, Respondent or the patient might have abruptly terminated the therapeutic relationship compounding the patient's problems. Respondent closely monitored each patient to ensure that the treatment plan did not create addiction. He took appropriate corrective measures when a patient: (a) began to spend excessive time and energy to obtain the drug; (b) became intoxicated frequently; (c) gave up important social, occupational and recreational activities because of drug use and not because of chronic pain; (d) continued to use a drug even though the patient knew it caused or exacerbated psychological or physical problems. In the 1980's, Respondent's referral and consultation resources were limited. Inpatient substance abuse programs were available but very expensive. The first outpatient addiction recovery programs focused on alcoholism. Pain treatment centers, mental health centers, and addictionologists became more available in the 1990's. Changes in insurance and state and federal pharmacological reporting requirements have also changed physicians' referral and consultation patterns in the last five years. In the 1980's, Respondent's peers knew he was interested in chronic pain management. Because he was willing to treat patients with complex medical problems who were sometimes non-compliant, other local physicians routinely referred their difficult patients to Respondent. Respondent's opioid prescriptions were all legal and within the allowable requirements relating to dosage and number prescribed. He controlled the amount of narcotics the patients received by writing prescriptions for low dosages and for short periods of time, sometimes even on a weekly rather than a monthly basis. The evidence indicates that all four patients experienced severe long-term pain. These patients were incurable and did not respond to standard pain therapy or treatment. Respondent's care, treatment and careful monitoring provided these patients with pain relief sufficient for them to function in society and carry on with their lives. Referral to or consultations with psychiatrists and addictionologists were not required. Respondent's care and skill in managing his patient's chronic pain met the professional standard of care of a family practitioner in the state of Florida.
Findings Of Fact Dr. Robert H. Wray is a licensed medical doctor in the State of Florida and was so licensed at all times pertinent hereto, having been issued license number MEII89I. The Petitioner is a regulatory agency of the State of Florida charged with the supervision and regulation of the licensure status and practice of medical doctors in the state. During the period of January 15 through March 8, 1979, the Respondent did not possess a controlled substance certificate of registration, issued by the United States Department of Justice, Drug Enforcement Administration and the Respondent was technically not authorized to dispense, administer, prescribe or possess scheduled controlled substances pursuant to the applicable federal statutes and regulations. The Respondent did not possess that certificate because of an inadvertent oversight on his part in that he forgot to timely renew his application therefor, which oversight he corrected promptly upon being made aware of it sometime prior to March 8, 1979. During the period of January 15 through March 8, 1979, the Respondent issued prescriptions to the patient Steve Maggiacomo, as follows: CONTROLLED SUBSTANCES QUANTITIES Quaalude, 300 mg. (Methaqualone 700 Valium, 10 mg. (Diazepam) 1500 Biphetamine, 20 300 Tuinal, 3 gr. (Secobarbital) 300 Percodan, (Oxycodone) 100 Placidyl (Ethchlorvynol) 200 Dexadrine Spansules (Amphetamine) 300 Demerol (Meperidine) 50 Parest (Methaqualone) 100 Parest, 400 mg. (Methaqualone) 100 Fiorynal 100 The Petitioner presented the testimony of two (2) psychiatrists regarding the question of whether the prescribing of such medication in those amounts for a medically justifiable purpose is outside the realm of generally accepted medical practice of physicians limiting their practice to violet patients and whether any harm might come to the public or the patient by such practice. Dr. Ernest C. Miller is a medical doctor licensed to practice in Louisiana, Arkansas and Florida, but is not board certified. At the time of his testimony he was Director of the Community Mental Health Center at the University Hospital in Jacksonville, Florida, and has half some experience in the treatment of violent psychiatric patients. His experience is limited, however, because the Community Mental Health Center is a receiving facility under the Baker Act rather than a treatment facility, therefore his duties are largely administrative in nature. Dr. Miller looked askance at the drug prescribing record or protocol of Dr. Wray in this case and opined that the patient should have been hospitalized, either voluntarily or involuntarily. Dr. Miller was unaware, however, that the patient had indeed been hospitalized for a period of five or six months with no beneficial effects. Dr. Miller was unable to testify with reasonable medical probability that the purpose of the prescriptions involved herein were for other than a medically justifiable purpose. Dr. Miller found that none of the drugs, accept percodan and demerol, were inappropriate in and of themselves, and Dr. Miller was unaware of the patient's hand injury for which the Respondent prescribed percodan and demerol as analgenics, hence all drug types prescribed are found to have been appropriate for the patient's condition. Although he felt that the quantity of drugs prescribed in the subject situation could have been excessive, Dr. Miller felt that that would depend on the circumstances of the individual case and he conceded that there may be circumstances where the quantities of drugs prescribed in the instant case would be medically justifiable and appropriate and he acknowledged that he did not have sufficient information and patient-history to make that judgment. Dr. Miller could not establish that any member of the public or the patient was harmed by the action of the Respondent in this instance. Although he himself felt that hospitalization would be the appropriate treatment modality, either voluntary or involuntarily, Dr. Miller admitted that there are certain violent persons who are not proper candidates for hospitalization, who would not benefit from such hospitalization and indeed might even be harmed by it. Dr. Miller established that there are possible circumstances under which the prescribing of a normally inordinate amount of drugs over a five (5) year period could be justified and appropriate in a case such as this one where the patient's propensity for violent acts and aggressive behavior was demonstrably allayed and he was able to contain his anxiety and personal conflicts so that he did not hurt himself or others during the five (5) year period. Dr. Phillip Rond is a psychiatrist who has had limited experience in treatment of violent or homicidal psychiatric patients. He has not treated a violent patient within the past ten years and has no experience in the outpatient treatment of violent psychiatric patients. Although testifying for the Petitioner, Dr. Rond corroborated the testimony of the Respondent that not all violent persons are psychiatric cases, nor are they all subject to hospitalization. He acknowledged that he did not have enough information at his disposal to advance an opinion regarding whether Steve Maggiacomo could be appropriately hospitalized involuntarily pursuant to the Baker Act. Although Dr. Rond evidenced some difficulty in justifying the amounts of drugs prescribed by the Respondent and the manner of prescribing them, he admitted that there may be some justification for prescribing those drugs in smaller amounts and it was certainly possible that he might find the actual prescriptions involved herein appropriate if he had different or additional facts regarding the patient which he did not have the benefit of at the time of his testimony. Dr. Rond thus acknowledged that there could be circumstances where such prescriptions were appropriate for such a patient being treated for violent tendencies on an outpatient basis. Dr. Rond was unable to find that the Respondent's prescriptions were for any reason other than a medically justifiable purpose. Although he felt that the percodan prescription was inappropriate, Dr. Rond was unaware at the time he testified of the Respondent's prescription of that drug to Steve Maggiacomo for alleviating discomfort due to his severe hand injury. Dr. Rond also felt that, although he questioned the amount of drugs prescribed in January and February of 1979, he also showed that that might be justifiable under proper circumstances. Dr. Rond established that the quantity of drugs prescribed during the time in question might be acceptable if prescribed over a longer period of time. Dr. Rond further corroborated the testimony of Dr. Miller and the Respondent in demonstrating that no "immoral conduct" had been committed by the Respondent nor that any of his practices had been deleterious or harmful to the public. Further, although he asserted that the appropriate treatment modality would have been hospitalization for this patient, Dr. Rond could not state with any reasonable medical probability that the patient should have been involuntarily hospitalized. He found no evidence to support that procedure and admitted that the Respondent had benefited the patient medically by curtailing his violent tendencies without doing any harm to the patient or the public. Dr. Rond asserted that he would not become involved in a psychiatrist/patient relationship with a patient such as the one treated by the Respondent, but acknowledged that once Dr. Wray undertook to treat him he could not ethically extricate himself from that relationship. Nor was he able to say that the prescription of the subject drugs and the amounts involved is outside the generally accepted medical practice of those limited numbers of psychiatrists, like the Respondent, who limit their practice to violent patients. Dr. Rond had little experience with outpatient treatment of violent patients and did not wish to become involved with that type of patient. He stated that if he became involved treating such a patient he would disengage himself as readily as possible and hospitalize such a patient if possible and, if not, he would drop the patient. He admitted however that to so desert a patient would be a violation of the proper standards of ethics and medical care in the community. Dr Rond was ultimately unable to express an opinion regarding the appropriateness of the Respondent's actions given the facts at his disposal in arriving at an opinion and conceded the possibility that indeed Patient Maggiacomo was appropriately treated based upon the totality of the circumstances peculiar to his situation. Dr. J. F. Mason, M.D., a psychiatrist, and Dr. Phillip B. Phillips, also a psychiatrist, the latter of whom is a life Fellow of the American Psychiatric Association, past President of the Florida Psychiatric Society and current President of the Southern Psychiatric Association, established that there was no unethical or unprofessional conduct of the Respondent in his undertaking a therapeutical alliance or relationship with this patient and his manner of treatment. Dr. Mason also opined that the Respondent had indeed been trapped into a treatment relationship before he realized the difficulty of treating such a patient on an outpatient basis. Dr. Phillips has testified in countless legal cases involving violent patients in all courts, usually involving patients who exhibit antisocial, violent behavior. Dr. Phillips commended the Respondent's willingness to accept such a difficult patient initially and noted that few psychiatrists would accept such a patient. The Respondent is a highly reputable and competent psychiatrist. Dr. Phillips found nothing inappropriate in the Respondent's generous use of suppressive medication for this patient and opines that such is an appropriate course of treatment for such an extremely violent patient and, indeed, felt it commendable in this patient's situation. The Respondent elected to testify in his own behalf. He claimed the psychiatrist/patient privilege and was unable thus to reveal certain details of the patient's history and background and his relationship with him. As will be indicated hereinbelow, that claim of the psychiatrist/patient privilege has been upheld by the Court of Appeals for the First District and Dr. Wray's refusal to attempt to waive that privilege on behalf of the patient has been justified by that opinion. Nevertheless, Dr. Wray was able to testify in sufficient detail to convince the Hearing Officer of the extremely violent nature of his patient's disorder and that the particular drugs prescribed, in the amounts prescribed, up through February of 1979, benefited that patient and prevented him from harming himself or members of the public. The Respondent was referred the patient, Steve Maggiacomo, by John Bordon, Ph.D., a psychologist. The Respondent began treating the patient under contract with the Veterans Administration to render psychiatric services to him. At the time he accepted the patient for treatment, he was unaware of the extent of the violent tendencies of the patient. He began his treatment of Maggiacomo very conservatively, relying chiefly on his therapeutic alliance or rapport with the patient as well as low doses of non-dangerous medication, suck as valium. The Respondent treated the patient on this conservative basis for approximately a year and a half. During the course of that period of treatment, evidence of the patient's severe violent tendencies became increasingly apparent. The Respondent regularly communicated with the Veterans Administration, informing them of his methods of treatment for the patient and the patient's progress thereunder. The Veterans Administration, during that time, consistently approved that course of treatment. Despite his violent tendencies and considerable past difficulties the patient was able to maintain sufficient control of his disorder during this time by Dr. Wray's therapeutic alliance and medication therapy, to attend college and obtain his masters degree. The patient's violent tendencies became more pronounced after the first year and a half of treatment and upon the Respondent's investigating the full extent of his violent history, Respondent persuaded the patient to voluntarily hospitalize himself. He was hospitalized for four or five months without success and returned to treatment with the Respondent. The hospitalization proved to be of no benefit to the patient and indeed seemed to have been harmful. The Respondent at this point in his course of treatment realized that more drastic measures were necessary in order to prevent the patient from hurting himself or someone else. He began to increase the variety and quantity of the patient's medications in order to suppress his increasingly violent tendencies. The Respondent regularly informed the Veterans Administration during this time of his method of treatment of the patient and stressed to the Veterans Administration the unique problems presented by the patient and the importance of the unusual treatment modalities which he felt it necessary to employ. The Respondent closely monitored the effects of the increased variety and quantity of medications on the patient and was constantly observing for signs of drug addiction or other related problems. The Respondent actively investigated the possibility that the patient might be selling or giving away the drugs, including contacting various persons of his acquaintance with law enforcement agencies. That investigation was negative and the Respondent obtained no indication that the patient was doing other the taking the medications as the Respondent prescribed them. The patient had good insight into the need for and use of the medications and no evidence was established to show that he was using them inappropriately. The increased medication treatment modality employed by the Respondent was having beneficial effects on the patient. In order to guard against the possibility of addiction or other adverse effect from the medication, the Respondent had the patient examined by an internal medicine specialist, Dr. Brett. This thorough examination indicated no adverse physical effects from the course of medication. Sometime prior to March of 1979, the Respondent determined to leave the practice of psychiatry to enter lab-school as a full-time student. He informed the patient of his decision. The patient, for his part, decided to leave Florida and return to Connecticut. The Respondent was unaware of any psychiatrist or other therapist to whom he could refer the patient in Connecticut and, accordingly, over a period of several days, prescribed a large amount of medication for the patient to enable him to maintain control over his violent behavior for a sufficient period of time to safely allow him to locate another therapist in Connecticut. The types of medication prescribed throughout the course of treatment, including March of 1979, were appropriate to the condition and peculiar circumstances of this unique patient. The Respondent has extensive experience in the treatment and control of violent patients. He has treated over a thousand violent patients both on an inpatient and outpatient basis during his professional career. There are only approximately a dozen psychiatrists in this country who so specialize in the treatment of violent outpatients with a degree of experience equal to that of the Respondent. No harm came to the patient or to the public during treatment of this patient and, in fact, the patient was benefited by the course of treatment. The Respondent's one effort at a "follow-up" of his former patient's progress indicated that the patient had successively located another therapist in the Connecticut area and was continuing treatment under the same regime of medication originally prescribed him by the Respondent with the same beneficial results. The Respondent established that the only alternative to the extraordinary treatment he rendered the patient would have been to leave the patient to his own devices with the likely result that innocent persons or the patient himself would be violently injured or killed. It is unfortunate, however, that the Respondent failed to establish that he made any significant efforts to contact a suitable therapist in the Connecticut area to assume responsibility for Steve Maggiacomo's case prior to his entry into law school and Maggiacomo's migration to Connecticut. Rather than make substantial efforts to contact such a therapist in an attempt to aid the patient in establishing a therapeutic alliance with a new therapist he chose instead to prescribe several months supply of the medications Maggiacomo had been successively treated with. Although Dr. Wray established that Maggiacomo had consistently followed his directions in taking the medications as prescribed and had a good insight into his illness, the need for the medication, and the manner in which he should take them, he, in effect, allowed the substitution of the patient's judgment and discretion for his own in this regard, without actively working to obtain his referral to another therapist. The therapeutic alliance was established by the Respondent himself, as well as Dr. Miller, to be as important an element of the treatment as the controlled substances prescribed.
Recommendation Having considered the foregoing findings of fact conclusions of law, the evidence in the record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED that a final order be entered by the Petitioner finding that the Respondent, having engaged in an isolated instance of unprofessional conduct occurring at the end of his relationship with the subject patient, be found guilty of unprofessional conduct as defined in Section 458.1201(1)(m), Florida Statutes (supp. 1978) as substantially reenacted in Section 458.331(1)(q) and (t), Florida Statutes (1979) and for the inadvertent technical violation involving failing to timely renew his certificate of registration with the United States Department of Justice, Drug Enforcement Administration, that he be found guilty of the charge in Count III of violation of Section 458.1201(1)(k), Florida Statutes (supp. 1978), as substantially reenacted in Section 458.331(1)(h), Florida Statutes (1979); that as a penalty for these violations, the Respondent be required to enroll in a continuing education course designed to enhance his professional knowledge concerning the appropriate prescription, dispensing, administering or possession of controlled substances and that his professional practice be monitored by the Board of Medical Examiners for a period of one (1) year to ensure that he appropriately and timely enrolls, participates in and completes such continuing education course. DONE and ENTERED this 12th day of November, 1982, 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 12th day of November, 1982. COPIES FURNISHED: Joseph W. Lawrence, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Thomas L. Powell, Esquire 211 East Call Street Tallahassee, Florida 32302 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 81-1609 ROBERT H. WRAY, M. D., License No. 11891, Respondent, /
The Issue Whether respondent should grant petitioner's application for licensure as a real estate salesman or deny the same for the reasons set out in respondent's letter to petitioner dated June 7, 1989?
Findings Of Fact Respondent introduced the only evidence offered at hearing, a copy of the application petitioner filed on March 7, 1989, including his answer to Question No. 7 on the application which consisted of several pages of documentation of an extensive criminal record. A partial list includes: CHARGE(s) DATE(s) DISPOSITION(s) DISORDERLY INTOX 06/06/79 NOL PROS DRINKING OF VENDORS PREMISES DISORDERLY INTOX 06/06/79 06/06/79 NOL PROS NC ADJ. G. SENT 30 DAYS CON OF ALC. BEV. ON 06/06/79 NC ADJ. G. SENT 30 DAYS CITY PROPERTY DISORDERLY INTOX 08/22/78 REC. IN CO. CLERK OFFICE DRINKING ON VENDORS 08/22/78 REC. IN CO. CLERK OFFICE PREMISES DISORDERLY INTOX 04/13/78 SENT 30 DAYS NPT NO VALID D.L. 04/13/78 SENT 30 DAYS NPT DISORDERLY INTOX 04/07/78 SENT 2 DAYS NPT DWI 05/27/77 NC SENT 30 DAYS NO VALID D.L. 05/27/77 NOL PROS DISORDERLY INTOX 05/03/77 NOL PROS DISORDERLY INTOX 04/01/77 NOL PROS DISORDERLY INTOX 03/02/77 SENT 15 DAYS NPT LOITERING 03/02/77 NOL PROS DISORDERLY INTOX 01/07/77 SENT 10 DAYS NPT DISORDERLY INTOX 01/05/77 NC SENT 30 DAYS SUSPENDED DISORDERLY INTOX 01/04/77 PG SENT 10 DAYS SUSPENDED DISORDERLY INTOX 11/10/76 PG SENT 10 DAYS S/S DISORDERLY INTOX 07/15/76 SENT 30 DAYS DISORDERLY CONDUCT FIGHTING DISORDERLY INTOX 07/15/76 04/16/76 NOL PROS SENT 30 DAYS F.T.A. ON DISORDERLY 04/16/76 DISCHARGED INTOX DISORDERLY INTOX 06/12/75 REC. IN CO. CLERKS OFFICE DISORDERLY INTOX 05/17/75 DISCH. PUBLIC PROFANITY 05/17/75 DISCH. MAKING THREATS 05/17/75 SENT 30 DAYS NPT VIOLATION OF FINANCIAL 05/17/75 REC. IN CO. CLERKS OFFICE REST. LAW DISORDERLY INTOX 03/19/75 NOL PROS DWI 10/28/74 SENT 6 MOS. NPT NO D.L. 10/28/74 SENT 3 MOS. NPT WORTHLESS CHECK 05/26/74 SENT 60 DAYS NPT DWI 05/26/74 SENT 90 DAYS NPT NO D.L. 05/26/74 SENT 90 DAYS NPT IMPROPER TURN 05/26/74 SENT 10 DAYS NPT CARELESS DRIVING 04/11/74 PG SENT 10 DAYS NPT DWI 04/11/74 PG SENT 10 DAYS NPT NO D.L. 04/11/74 PG SENT 10 DAYS NPT INDECENT EXPOSURE 04/11/74 PG SENT 10 DAYS NPT LOITERING 03/10/74 NOL PROS PUBLIC INTOX 03/10/74 SENT 10 DAYS NPT PUBLIC INTOX 11/03/73 SENT 1 DAY NPT PUBLIC INTOX 10/19/73 REC. IN CO. CLERK OFFICE DISORDERLY CONDUCT 04/04/72 SENT 30 DAYS DRUNK PUBLIC INTOX 04/14/73 SENT 60 DAYS FIGHTING 04/14/73 REC. IN CO. CLERKS OFFICE ASSAULT TO MURDER 07/22/72 REC. IN CO. CLERKS OFFICE FUGITIVE 03/16/72 SENT 20 DAYS DISORDERLY CONDUCT 03/15/72 SENT 75 DAYS S/S DRUNK DISORDERLY CONDUCT 11/13/71 SENT 60 DAYS DRUNK DISORDERLY CONDUCT 11/10/71 SENT 60 DAYS S/S DRUNK PROFANITY 11/10/71 DISCH. DISORDERLY CONDUCT 08/20/71 SENT 30 DAYS DRUNK DISORDERLY INTOX 05/03/77 NOL PROS DISORDERLY INTOX 04/01/77 NOL PROS DISORDERLY INTOX 03/02/77 SENT 15 DAYS NPT Respondent's Exhibit No. 1. Other skirmishes with the law date to 1950 and have occurred as recently as 1984. Without evidence of rehabilitation since these problems with the criminal law, there is no basis for any finding other than the fact of petitioner's admitted criminal violations.
Recommendation It is accordingly, RECOMMENDED: That respondent deny petitioner's application for a real estate salesman's license. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of December, 1989. COPIES FURNISHED: Paul T. Myers 4550 Crescent Street, Apt. 6 Jacksonville, Florida 32205 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson, Suite 212 Orlando, Florida 32801
The Issue The issues to be determined are whether Respondent has been convicted of crimes related to the practice or the ability to practice medicine in violation of section 456.072(1)(c), Florida Statutes (2013), by virtue of being found guilty of traveling to meet a minor to engage in sexual contact; unlawful use of a two- way communications device to facilitate the commission of a felony; and using a computer to facilitate or solicit the sexual conduct of a child; and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times relevant to these proceedings, Respondent was licensed as a physician by the State of Florida, and holds license number ME 79663. Respondent is an internist in Perdido Key, where he practices as a solo practitioner. Respondent considers himself to be an “old fashioned physician” who spends 30-45 minutes with each patient. This pace necessitates that he see fewer patients per day than the apparent norm. In mid-to-late 2013, Respondent had reached a cross- roads in his life. He was in the midst of a drawn-out divorce proceeding, and was coming to terms with his sexuality as a gay man. He felt like he was drowning in the paperwork associated with his practice, and was in debt. He was also mildly depressed about his life. While Respondent had come to terms with his homosexuality, he had not told his family and friends and was unsure of their response. Respondent does not drink or smoke, and does not go to bars, so his venues for meeting other men with whom to build any kind of relationship were limited. He decided to post ads on Craig’s List in the “Casual Encounter Section.” One of his ads read in part, “I prefer younger Men. Under 30 is a big plus . . . . No reciprocation required if you come to me, are fit and under 25.” On December 22, 2013, Respondent received a response from a person identified as “Matt.” Respondent corresponded by e-mail with Matt over the next couple of weeks. From the very beginning, Matt described himself as “kinda young.” Respondent responded by saying, “I like young,” to which Matt revealed he was not yet 18. The following day, Matt stated that he had just turned 14 and was inexperienced. Respondent wrote that he would love to meet Matt and “show [him] a few things,” and stated that “I love inexperienced guys that I can take my time with and see them experience the joy of sex for their first time.” Many of the e-mails are quite graphic and reciting their contents would serve no purpose. These e-mails lasted from December 23, 2013, through January 2, 2014. In reality, the person responding to the ad and identified as Matt was not a 14-year-old boy. Matt was actually Zach Ward, an undercover police officer. During Respondent’s e-mail communications with Detective Ward, he offered to meet Matt eight separate times. He was aware that his conduct had criminal implications and noted this fact several times. For example, he advised Matt not to save a photo that he sent to Matt and not to save any of their messages “in case anyone gets ahold of your phone,” and he advised Matt to “be careful what they text,” but that there is “nothing illegal with us kissing and making out.” Respondent even attempted to justify his actions in an e-mail, stating: I have rationalized that it is morally ok if you are the one who instigates it. Clearly doesn’t make it legal. But I think it is almost preferable for a young guy to be able to experiment and play safe and learn from an older person as opposed to playing with a girl your age and ending up getting her pregnant. Yet that is somehow socially accepted but older with younger is not . . . . I have given this much consideration. I feel if the opportunity came knocking at my door, I wouldn’t chase it away. Respondent also spoke to Matt about his practice as a physician. He told Matt that he was a family doctor, and communicated with him by e-mail between seeing patients. He discussed a 16-year-old patient with Matt, identifying the patient by first name; stating that he had seen the patient naked; that he thought the patient was “cute”; and that he wished the patient was gay. In talking about this patient, Respondent told Matt he always asks teenagers about their sexual preference, and also stated: Some people make jokes about pedophiles becoming doctors and teachers. But, as long as they don’t act on their desires and don’t make advances and seduce their patients, I don’t see any harm in it. I think it actually makes me a better doctor. I screen teens for issues like depression, drug use, sexual activity and orientation. I spend a little more time with them than most doctors. But I treat them like a person and don’t just push them out the door. To me, a sexual predator uses their influence to coerce a child into sexual acts. I would never do that . . . . Eventually, Matt and Respondent agreed to meet at a bowling alley near Matt’s purported home. On January 2, 2014, Respondent left his office and traveled to the pre-arranged meeting location at a bowling alley. Upon his arrival, Respondent was arrested. On April 25, 2014, the State Attorney for Escambia County filed a three-count Information against Respondent. The Information alleged that on January 2, 2014, Respondent knowingly traveled within the state to engage in unlawful sexual conduct with a person Respondent believed to be a child less than 18 years old, in violation of section 847.0135(4)(a), Florida Statutes (2013); that between December 23, 2013, and January 1, 2014, Respondent knowingly used a cell phone or two-way communication device to facilitate or further the commission of a felony, i.e., traveling to meet a minor to engage in sexual conduct, in violation of section 934.215, Florida Statutes (2013); and that between December 22, 2013 and January 1, 2014, Respondent knowingly used a computer or internet service to attempt to seduce or solicit another person Respondent believed to be a child less than 18 years old to engage in unlawful sexual conduct, in violation of section 847.0135(3)(a). The Information was filed in Escambia County Circuit Court and docketed as Case No. 1714CF000027A. For some reason that has not been explained, the documents also bear docket no. 2014-CF-000027. Respondent was tried before a jury on January 12, 14, and 15, 2015. Respondent testified on his own behalf during the criminal trial, and claimed that he was aware that Matt was not a young boy, but was in fact an undercover police officer posing as an underage male. He felt law enforcement was targeting homosexuals, and he wanted to use the opportunity presented to him to bring attention to this social issue that he felt needed to be addressed. He also claimed that he was aware there was a good chance that he would be arrested, but viewed it as a way to deal with his growing dissatisfaction with his practice and his need to admit to his family and friends his decision in terms of his sexuality. By its finding of guilt, the jury clearly did not find his claim to be credible. Respondent wrote a letter to his housekeeper the day before the pre-arranged meeting with Matt, telling her that he expected to be arrested and that he believed that Matt was an undercover police officer. The housekeeper found the letter and turned it over to defense counsel. While the letter was not admitted into evidence in the criminal proceeding, it was admitted in this disciplinary case. While Respondent believes that the letter shows that he did not believe Matt to be underage, this disciplinary proceeding is not an opportunity to retry the criminal action. Moreover, Respondent’s claim that he knew Matt was not an underage boy, but rather a police officer, is rejected as not credible. Respondent’s letter to his housekeeper could be just as easily interpreted as an attempt to provide a defense for Respondent should he get caught. Even assuming, for the sake of argument, that Respondent did in fact know Matt was an undercover officer, a finding which the undersigned does not make, his actions are not transformed into a selfless act. Both Respondent’s testimony at hearing and the letter he wrote to his housekeeper evidence a total disregard of the consequences his actions could bring and what effect those actions could have on the continued vitality of his practice and the well-being of his patients. On January 15, 2015, the jury found Respondent guilty of all counts charged. At his sentencing hearing on February 23, 2015, several patients, employees, and a family member testified on his behalf. The circuit court judge withheld adjudication, and sentenced Respondent to two years of community control, followed by 13 years of probation. This sentence represents a downward departure from the criminal sentencing guidelines. Respondent was designated as a lifetime Sex Offender; required to enroll and complete Sex Offender Counseling and any recommended treatment; prohibited from caring for or treating minors without notifying the minor’s parents of his Sex Offender status, and having another staff member present; prohibited from any other contact with those under the age of 18; and prohibited from using a computer unless required for the treatment of patients. Among the many conditions of probation is the requirement that Respondent must work “diligently at a lawful occupation, advise [his] employer of [his] probation status, and support any dependents to the best of [his] ability, as directed by [his] officer.” Respondent’s conditions of community control require check-ins with his Community Control Officer approximately three times weekly, and that he keep his Community Control Officer apprised of his whereabouts at all times. Any travel outside his work schedule must be approved in writing, and Respondent must notify his Community Control Officer in advance of any travel to address a patient emergency. Respondent only has one part-time staff member, a receptionist, available to be present during examination and treatment of minor patients. His receptionist is not licensed by the Department. At hearing, he testified that he no longer sees minor patients. Respondent asserts that his conviction is not related to the practice or the ability to practice medicine, because he had no intent to harm any minor. However, the evidence indicates that he went to the bowling alley for the meeting knowing that his actions would in all likelihood get him arrested. The evidence, taken as a whole, suggests that the encounter was worth the risks to him. This fact alone shows a disregard for the well-being of his patients and their continued care. Moreover, the conditions of his criminal sentence place specific restrictions on his medical practice by requiring the parents of any minor patient to be informed of his Sex Offender status, and requiring the presence of another staff person in the office during any treatment of minors. Further, as noted by Dr. Libert’s testimony, Respondent is prohibited from having contact with minors outside the supervised care of underaged patients. Having a staff member available, even part-time, for supervised patient visits does not address the very real probability of children being present in his office that are related to his patients. Clearly, these restrictions that have been imposed as a result of his convictions are related to the Respondent’s ability to practice medicine. The personal qualities essential to the sound practice of medicine include integrity, respect for the public trust, good judgment, and respect for the well-being of others. Respondent’s actions reflect extremely poor judgment and a violation of both the trust of his patients and the trust society places in physicians. His Sex Offender status undermines the confidence that the public is entitled to have in the judgment and integrity of a health care professional licensed in this state. Patients should not have to check the Sex Offender Registry before placing themselves into the care of a licensed physician. Respondent’s convictions for the crimes charged in the Information are convictions of crimes related to the practice or the ability to practice medicine in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent has violated section 456.072(1)(c), Florida Statutes, and revoking his license to practice medicine. DONE AND ENTERED this 2nd day of December, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of December, 2015. COPIES FURNISHED: Brian Mitchell Lee, M.D. 13020 Sorrento Road Pensacola, Florida 32507 Louise Wilhite-St. Laurent, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) Brynna J. Ross, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact The Respondents have, at all times relevant to this proceeding, been registered with the Board of Nursing as Registered Nurses. The Respondent Rubin has, at all relevant times, been employed at Baptist Medical Center in Jacksonville, Florida as a clinical specialist in psychiatric nursing. He has fifteen years experience within that specialty. The Respondent Harper has at all material times been employed as the Assistant Administrator for Nursing at Baptist Medical Center. She has thirty years experience as a Registered Nurse, and twenty-two years experience as a nursing supervisor. On January 1, 1979, the Respondent Rubin received a telephone call from Dr. Jay W. Edelberg, the physician in charge of the emergency room at Baptist Medical Center. Dr. Edelberg related that he was scheduling a meeting for the next day with respect to a nurse on the emergency room staff. Dr. Edelberg told Rubin that he believed the nurse might be suffering from psychiatric difficulties and he wanted a person with experience in that area to be present at the meeting. The meeting began at 8:00 or 8:30 a.m. on January 2. Dr. Edelberg, the Respondent Rubin, and Mary Brown, Dr. Edelberg's secretary, were present. The focus of the meeting was potential drug abuse on the part of a nurse, Vicki Lynn Enos. After a discussion of approximately ten minutes relating to general conditions in the emergency room, Vicki Enos was brought into the meeting. She was confronted with Dr. Edelberg's suspicions respecting drug abuse. She vehemently denied any drug use on her part at all. Dr. Edelberg confronted her with a syringe that he stated he had found in her locker. Vicki Enos admitted taking the syringe, but she denied taking it home or using any drugs. The meeting ended without any definite action being taken against Vicki Enos. She had agreed to seek psychiatric attention. The Respondent Rubin believed that she was suffering from severe psychiatric problems and that she needed extensive care and treatment. The Respondent Rubin reported his participation in the meeting to his supervisor, the Respondent Harper. He related to Harper that the meeting involved a young nurse from another section of the hospital who had a psychiatric problem. He reported the meeting because it was outside of the normal scope of his responsibilities. He did not relay any information to Harper respecting drug abuse. Vicki Enos sought a meeting with the Respondent Harper, and an appointment was scheduled for January 4, 1979. Prior to the meeting, Dr. Edelberg had advised the Respondent Harper that he had been told by other personnel in the emergency room that they were concerned about strange behavior on the part of Vicki Enos. Dr. Edelberg told her that he did not know of any drug abuse on the part of Vicki Enos, and he did not tell her about his finding the syringe. the appointment on January 4, Vicki Enos told Harper about problems she was having with other personnel at the emergency room. Enos told Harper of rumors of drug abuse, but she denied any drug abuse on her part, and denied possession of any drugs. She did not tell the Respondent Harper of the syringe. The January 4 meeting was the only time that the Respondent Harper ever met Vicki Enos. Nurses in the emergency room were not supervised by Ms. Harper. Vicki Enos was supervised by Dr. Edelberg. On March 22, 1979, Barbara Enos, Vicki Enos' mother telephone the Respondent Harper at Harper's office. Ms. Harper was not in her office when the telephone call was placed, but she did return the call. When she returned the call a Ms. Barbara Enos and the Respondent Rubin were present in the office. Barbara Enos asked that the Respondent Harper stand as a reference for Vicki Enos. The Respondent Harper responded that she could do that since she was not Enos's supervisor. She explained Dr. Edelberg was Vicki Enos' supervisor and that he would have to provide any references. The Respondent Harper then let Respondent Rubin speak with Barbara Enos. The Respondent Rubin told Ms. Harper that he believed that Vicki Enos had a major psychiatric problem. He did not speak of any drug problem. The Respondent Rubin did not work directly with Vicki Enos. His only contact with her was in connection with the January 2 meeting and the March 22 telephone conversation with Barbara Enos. There was a very serious conflict in the testimony given by Vicki Enos and Barbara Enos, the testimony given Respondents, and the testimony given by Dr. Edelberg. The Findings of Fact in Paragraphs 2, 3, and 4 represent a resolution of the conflicting testimony. The testimony of the Enoses has been disregarded as not being creditable. Vicki Enos testified inter alia that she made a full confession of numerous instances of drug abuse at the January 2 meeting. This testimony was rebutted not only by the testimony of the Respondent Rubin, but also by the testimony of Dr. Edelberg, a witness with no interest in this proceeding. This instance of lack of candor on the part of the witness Vicki Enos demonstrates her willingness to testify falsely under oath, and has been taken into consideration in evaluating the totality of her testimony. The demeanor of Vicki Enos at the hearing has also been evaluated in rejecting her testimony. Furthermore, Enos testified that she had difficulties securing employment in Jacksonville subsequent to leaving the emergency room at Baptist Medical Center. It is clear that she considered the Respondents responsible for her failure to obtain other employment. The testimony of Vicki Enos' mother has been similarly rejected. The testimony of the Respondent Rubin and Dr. Edelberg, with respect to the January 2, 1979 conference with Vicki Enos, was not totally consistent. Dr. Edelberg admitted that his recollection was very unclear. He could not recall specifically whether he announced that he found a full syringe of morphine sulphate in Vicki Enos' purse which was in her locker, as he in fact did, or whether he merely said that he found a syringe in her locker. It is clear that the Respondent Rubin perceived that the syringe was not full and that it was found in her locker, not her purse. Dr. Edelberg testified that he was interested in protecting Vicki Enos from losing her nursing license and that accordingly he was vague at the January 2 meeting. That fact, together with his admitted inability to recall the facts of the meeting with definite clarity, explain the conflict between his testimony and that of the Respondent Rubin. Vicki Enos eventually confessed numerous instances of conversion of drugs to the Board of Nursing. A disciplinary proceeding was instituted against her, her license to practice nursing was suspended for one year, and the suspension was probated. The only evidence that the Respondent Rubin was aware of as to potential drug abuse on the part of Vicki Enos was his understanding that an empty syringe was found in her locker. The only evidence that the Respondent Harper was aware of was the statement from Dr. Edelberg that other personnel in the emergency room regarded Vicki Enos with suspicion.
The Issue Whether Respondent's license to practice medicine should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 458, Florida Statutes, as set forth in the Administrative Complaint, dated April 17, 1981, and Administrative Complaint, dated September 15, 1981, as amended on January 15, 1982. This proceeding commenced with Petitioner's filing of an Administrative Complaint on April 17, 1981, alleging that Respondent should be disciplined under Chapter 458, Florida Statutes, (1975)(1979) as a result of his alleged misconduct in 1974-75 whereby he engaged in sexual intercourse with one Sally Burton which resulted in her pregnancy and subsequent abortion. The Complaint also contained eleven counts involving the alleged prescribing of Schedule II controlled substances in 1980 by Respondent without a DEA registration certificate authorizing him to do so. Additionally, one count involved the alleged issuance by Respondent of a prescription to himself for a Schedule II controlled substance. Respondent thereafter requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the case was referred to this Division for appointment of a Hearing Officer. Notice of Hearing was issued on July 14, 1981 for a hearing to be held on September 22-23, 1981 at Tampa, Florida. Petitioner filed a motion for continuance of the hearing on the ground that a second administrative complaint had been issued against the Respondent on September 16, 1981, and that the two complaints should be consolidated for the purpose of hearing. The motion was granted and the hearing indefinitely continued. Petitioner filed its Second Administrative Complaint, dated September 15, 1981, with the Division on October 22, 1981, together with a motion to consolidate the two complaints. Respondent requested a Section 120.57(1), Florida Statutes, hearing as to the matters alleged in the complaint. The cases were consolidated by Order, dated November 13, 1981, pursuant to Rule 28-5.106, Florida Administrative Code. Notice of Hearing for the consolidated cases was issued on November 13, 1981 for a hearing to be held on February 15-16, 1982 at Tampa, Florida. Thereafter, Petitioner moved to amend Counts IV and VI of the Second Complaint and said motion was granted by Order dated February 5, 1982. As amended the Second Complaint alleged violations of Chapter 458, Florida Statutes, during various periods from 1967 to 1981. In general terms, it was alleged that Respondent had provided improper treatment to a patient suffering from alcoholic depression and anxiety, and that he employed the patient as a "co-therapist" in group sessions which had a negative impact on the patient's mental health as well as members of the group. The complaint further alleged that Respondent had engaged in activities of a sexual nature with a female patient, Emily Garrett, in 1968 which resulted in her emotional upset and harm. Finally, discipline was sought against Respondent as a result of his conviction in the Circuit Court of Hillsborough County, Florida on June 10, 1981 of manslaughter pursuant to Section 482.07, Florida Statutes, in connection with the death of Sally Burton. On February 5, 1982, Respondent filed a Motion for Continuance of the hearing due to a conflict in the schedule of one of his legal counsel, and due to the then pending appeal of Respondent's conviction before the Second District Court of Appeal. The motion was orally denied prior to hearing, but was renewed at the commencement of hearing on February 15, 1982. At that time, Respondent gave consent to the withdrawal of his current counsel, and a conditional appearance was entered by Frank Ragano, Esquire who conditioned such appearance on having an opportunity to familiarize himself with the facts and law of the case. The renewed motion was denied for lack of good cause, but Respondent was afforded the opportunity to proceed with his counsel who was then present, William S. Lancaster, Esquire, during presentation of Petitioner's case, at which time a continuance would be granted to afford additional time for Mr. Ragano to assist in preparing Respondent's defense. Mr. Lancaster requested that he be permitted to withdraw due to his stated inability to fully represent the Respondent at the hearing. Respondent consented to the withdrawal, and declined to proceed in the manner suggested by the Hearing Officer, and thereupon left the hearing room. Accordingly, the proceeding commenced in the absence of Respondent and his counsel. After the testimony of seven witnesses of Petitioner had been received, Respondent and Mr. Lancaster reentered the hearing room and agreed to participate in the proceeding provided a continuance would be granted at the conclusion of Petitioner's case. Respondent's counsel then cross-examined three of the witnesses who had previously testified. The hearing was continued on February 16, 1982 until April 20, 1982, and was concluded on April 22, 1982, except for the submission of late-filed exhibits in the form of depositions of four rebuttal witnesses and letter from the Drug Enforcement Administration. At the hearing, Petitioner presented the testimony of thirteen witnesses, including the Respondent. Respondent called thirty-three witnesses and testified in his own behalf. Petitioner submitted twenty-two exhibits in evidence. Those exhibits which were received provisionally at the hearing are now admitted. Respondent submitted nine exhibits, but withdrew Respondent's Exhibit 3, and Respondent's Exhibit 6 was rejected. Respondent's Exhibit 9 "A Guide for the Individual and Group Psychotherapy" was erroneously stated at the hearing to be Respondent's Exhibit 8, and has been renumbered. Late filed exhibits consisted of a letter from the Drug Enforcement Administration (Respondent's Exhibit 11), and the depositions of Dr. Joseph Lupo (Respondent's Exhibit 8), Shirley Heflin (Respondent's Exhibit 10) Emily Garrett (Petitioner's Exhibit 23), Captain R. W. Poindexter (Petitioner's Exhibit 24), and Janice Simmons (Petitioner's Exhibit 25) A Proposed Recommended Order filed by Petitioner has been fully considered, and those portions thereof not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent has requested that this Recommended Order be delayed pending action by the Supreme Court of Florida on Petition for Writ of Certiorari in the criminal proceeding. This request is denied.
Findings Of Fact Respondent Louis John Tsavaris has been licensed to practice medicine in Florida since August 15, 1956. He received his medical degree at the University of Miami School of Medicine in 1956, interned at the Cornell Medical Center, and attended the University of Michigan where he was an Assistant Resident and Junior Clinical Instructor. He began his practice as a psychiatrist at Tampa in 1962 and has continuously practiced in that capacity. (Testimony of Respondent, Petitioner's Exhibit 19). Pierce H. Brereton, Jr. became a patient of Respondent in 1967. He was a homosexual who suffered from depression and a severe character disorder, together with an alcohol and drug problem. Brereton had had several prior hospitalizations for schizophrenia. Respondent prescribed Antabuse for the patient to control his drinking, but Brereton discontinued its use after several months. He participated in group therapy sessions conducted by Respondent until 1978 when he terminated his patient relationship. Although Brereton soon resumed his drinking habits after discontinuing Antabuse, he attempted to hide the fact from Respondent. As early as 1974, and off and on throughout the following years, Respondent prescribed Valium for Brereton's depression and anxiety. About 1974, Respondent opened another office in Siesta Key and employed Brereton to run errands and to do janitorial work at that location. Respondent then utilized Brereton as a "co-therapist" in psychiatric group therapy sessions for a fee of approximately $100 per week. Brereton had had no formal training or qualification as a therapist, but several years later commenced graduate courses in Gestalt therapy at the University of South Florida. Another "co- therapist", Kathryn Von Schmidt, who had been a patient of Respondent since 1973, was employed by him to assist at group sessions commencing in 1974. She was unqualified at the time, but received a Master's Degree in Counselling in December, 1975. She continued in her capacity as a co-therapist until the end of 1976. Also, Marian Klein, who held a Master's Degree in Psychology and had been Respondent's patient since 1973, became a co-therapist from 1975 to 1979. Brereton worked as co-therapist with both Von Schmidt and Klein during) the period 1974-1978. Klein found that his ability as a therapist varied from excellent to disruptive. Breretons appearance and general manner improved substantially during the years that he served as a co-therapist. Several of the group patients testified at the hearing that his presence caused a deterioration in their condition because he was unqualified to conduct therapy sessions. However, a number of other patients who attended the sessions seemed unaware that Brereton actually had any kind of "official" capacity, and regarded him merely as loquacious and as a "roll-taker". Respondent was either present or readily available during virtually all of the sessions in which co-therapists were assisting in the conduct of group sessions. Respondent employed Brereton as a co-therapist ostensibly to provide him with a reference for future employment and in the belief that such activity would be therapeutic for him. Brereton testified that his drinking had continued during the years when he was employed by Respondent, and that Respondent frequently drank alcoholic beverages with patients, including Brereton, before and after therapy sessions. He claimed that Respondent frequently came to his (Brereton's) residence with a bottle of liquor which they drank. The weight of the evidence shows that Brereton hid his drinking from Respondent and other patients, and that they were virtually unaware of his continuing alcohol problem. Respondent occasionally would join a group for dinner at a restaurant and have a drink with them, but did not make a practice of it. The evidence is insufficient to show that he either drank frequently with Brereton or otherwise made liquor available to him. In 1978, Brereton became irrational and abusive and came to therapy sessions on occasion when he had been drinking. At such times, Dr. Klein would send him home. She finally informed Respondent about his actions on one occasion. Respondent then warned Brereton of the dangers of taking Valium when he had been drinking. The patients in the groups were aware of his drinking in 1978 and were disturbed by his conduct. Brereton had considered Respondent to be "as infallible as the Pope" during his early years as a patient, but after the death in 1975 of Cassandra "Sally" Burton, who had been another of Respondent's patients, and Respondent's subsequent indictment for her death with consequent publicity of that fact, Brereton harbored hostile feelings against Respondent. He has filed a malpractice suit against Respondent and urged other patients to do so. Expert opinion holds that, although a "co-therapist" or other assistant at group therapy sessions should have appropriate credentials in counselling or psychology, an unqualified patient's presence in come leadership capacity would not necessarily impair his or her mental health, or that of the other patients if the group is structured with a qualified therapist or psychiatrist present at the sessions. It is found that insufficient evidence has been presented to establish that Brereton's activities as a co-therapist had a negative or deleterious impact on either his mental health or that of other patients. (Testimony of Respondent, Brereton, Crumpler, Speck, Ramirez, Burdette, Gonzalez, Stenberg, Prince, Adams, Putney, Melton, Albano, Brown, Barker, Burns, Von Schmidt, Buckman, Wheatley, Silverman, Jones, Carlton, Gardner, Arrifaht, Lancaster, Klein, Petitioner's Exhibits 4-5, 7-8). In 1962, Emily Garrett, then approximately 15 years old, became a patient of Respondent for several months. She suffered from depression and was autistic. She returned for treatment with Respondent in 1965 or 1966 and continued as a patient until 1970. She testified by deposition at the hearing that on either April 6 or 13, 1968, Respondent requested that she come in his office after a group therapy session where he proceeded to unbutton her blouse and fondle her breasts, and sought to have her perform an oral sex act upon him. She claimed that her depression was increased as a result of Respondent's sexual advances, thus precipitating a suicide attempt on April 19th by taking a large quantity of Valium prior to a group therapy session. After the session, when Respondent learned of her ingestion of the drug, he had several of the group members take her to the hospital where her stomach was pumped out. She returned home and then took some other drugs and was returned to the hospital where she remained for several days. Garrett further testified that on May 28, 1968, Respondent again fondled her breasts in his office after a group session had terminated. Garrett continued as Respondent's patient until October, 1970 when she changed psychiatrists and became a patient of a Dr. Vesley. This was due to the fact that she was unable to continue private sessions with Respondent because he was commuting between Tampa and New Jersey in order to teach at a medical college. In April, 1981, she became aware of publicity surrounding Respondent and voluntarily contacted Petitioner's investigators, at which time she related to them her allegations concerning Respondent's misconduct. Although she testified that she had told her sister about the incidents several years after they had occurred, and had also related them to Dr. Vesley, neither of those individuals testified at the hearing. Garrett testified that she did not report or otherwise complain about Respondent at an earlier time because of her feelings of dependence and sense of loyalty to him. Respondent denied Garrett's allegations and claimed that she had come to his office several times after her discontinuance as a patient and wanted him to become romantically involved with her. Although experts in the field of psychiatry agree that it is clearly unethical and a deviation from acceptable standards of practice for a psychiatrist to have sexual contact with a patient, it is also common for female patients to fantasize about their relationships with their psychiatrist. It would be unusual for a patient to continue treatment with a psychiatrist after he had committed a sexual assault against her. It is found that insufficient credible evidence has been presented to establish that Respondent committed the acts alleged by Garrett. (Testimony of Garrett (Depositions-Petitioner's Exhibits 17-18, 23), Respondent, Gonzalez, Warren, Afield, Gardner). Cassandra "Sally" Burton became a patient of Respondent in 1974. He diagnosed her condition as paranoid schizophrenia in partial remission with a drug addiction problem. She had previously been treated by psychiatrists and had been hospitalized. She had been a patient of Dr. Joseph Lupo, a Tampa psychiatrist, in 1969 when she was 18 years old. His tentative diagnosis of her condition was depression. After several months treatment in the fall of 1969, he admitted her to the psychiatric unit of Tampa General Hospital in January, 1970 based on her stated intention to commit suicide by overdosing on medication. He found her to be manipulative in her personal relationships and seductive in nature. She was discharged from the hospital after six days confinement at the insistence of her father. Dr. Lupo recommended to him at the time that she be continued in psychotherapy because she needed long-term treatment. She had shown signs of a manic depressive disorder. Such a disorder is a form of psychosis, which means loss of touch with reality and disorganization of thoughts, with impaired judgment. Based on psychological testing and observation, Dr. Lupo found that she was inclined to dramatize events in order to get attention, or as a manner of looking for help and being rescued. It was his opinion that she was capable of fabricating a story about having sexual intercourse, or a sexual affair with her treating psychiatrist. At the time that Burton became Respondent's patient, she told him that she had had syphilis and herpes. He treated her for gonorrhea and referred her to a gynecologist. In 1972, she had been hospitalized for several weeks for herpetic vaginitis. In August, 1974, Respondent referred the patient to Dr. Lawrence H. Ricker, a clinical psychologist, for testing and evaluation. He found that she was sexually disturbed with a severe personality disorder involving hysterical personality with underlying paranoid schizophrenic tendencies. His recommendation was a conservative therapeutic approach which considered her to be psychotic with support reality testing in the present rather than exploring the past. He further found that she had a propensity for self dramatization and tended to exaggerate, which exhibited a need for attention. Cassandra Burton was employed with A law firm as a legal secretary in Tampa in the fall of 1974. According to Jennifer Ross, a fellow employee, Respondent telephoned Burton at her office several times a week at which times they discussed when they were next going to see one another. The only time Ross saw Respondent and Burton together was at a dinner party at Ross' boy friend's house. On that occasion, Respondent and Burton arrived separately. Two of Respondent's former patients testified that they had had sexual relations with Burton. In one of these instances, the patient met Burton at Respondent's office and she asked him to take her home. This occurred about December, 1974. The other patient testified that he had observed her in bed with other men on several occasions. On March 5, 1975, Dr. Charles Mastin of Indian Rocks Beach performed an abortion on Burton. Respondent accompanied her to Mastin's office. After the abortion was performed, Burton embraced Respondent and they left the office together. The last charge made to Burton by Respondent's office for professional services was in December, 1974. Although she did not thereafter participate in group therapy sessions, Respondent's office records show that she made approximately 51 telephone calls to Respondent at his office from December, 1974 through April, 1975. On one occasion, she was involved in an automobile accident and came to Respondent's office where he examined her and referred her to an orthopedist. On April 19, 1975, at 11:24 p.m. Deputy Sheriff William Daggett of the Hillsborough County Sheriff's office was dispatched to assist fire and rescue personnel at Burton's residence in the Castellano Apartments. When he arrived at the apartment, rescue personnel were working on Cassandra Burton who was unconscious. Another Deputy Sheriff and Respondent were also present. Daggett proceeded to obtain information concerning the matter from Respondent, who was not under suspicion at the time. Respondent said that Burton had called him at 10:50 p.m., and told him that she had fallen down in the bathroom and was not feeling well. At that point, according to Respondent, the phone went dead as if it had been dropped. He decided to go to her apartment and arrived there about 25 minutes later, after stopping to purchase and eat an ice cream cone. He related that when he arrived at the apartment he found Burton sitting in a chair with the telephone cord around her throat area and that he could not tell whether she was breathing. He then called fire/rescue for assistance and commenced giving her artificial respiration. Respondent told Deputy Sheriff Daggett that although he had been Burton's doctor approximately a year before, he was presently seeing her only socially. A few days after Burton's death, Respondent called Jennifer Ross and said that he wanted to explain what had happened to Sally Burton. He told her that she had died from fibrillation of the heart, which was connected with some diuretic pills that she had been taking. Ross asked him if her death had anything to do with the abortion and he said "no". He asked her not to mention the abortion or his "relationship" with Burton to the police. On June 25, 1975, Respondent was indicted in the Hillsborough County Circuit Court for the premeditated murder of Cassandra (sic) Ann Burton, a/k/a Sally Burton, on April 19, 1976, by strangling her to death by means unknown, contrary to Florida Statutes, 782.04. On June 10, 1981, Respondent was found guilty of the crime of manslaughter and sentenced to imprisonment for fifteen years. Respondent testified at the hearing that he had terminated his physician-patient relationship with Burton in December, 1974 when he determined that she was seriously ill, not functioning well in group therapy, and needed long-term treatment. He recommended that she secure inpatient treatment and suggested that she see Dr. Arturo D. Gonzalez for this purpose. However, she did not wish to do so. On several occasions in 1975, Respondent let Burton borrow his car while he was out of state. He conceded that he had seen her after terminating her as a patient and decided to talk to her on occasions. He testified that he had induced her to attend a Bible class that he had been attending since the early 60's and that he would speak to her briefly once a week before the class. He denied ever having sexual intercourse with her and said that one of the reasons for his terminating her as a patient was due to the fact that she had vaginal herpes, which was always contagious in his opinion, and that he had had to treat several of his male patients who had been involved with her for urethral discharge. He claimed that she would pick up these patients at his office, and take them home with her. Respondent further testified that although he had arranged for Burton's abortion and accompanied her to the doctor's office for that purpose, he had not caused the pregnancy and did not pay for the abortion. Periodically in the past, he had referred patients who became pregnant to physicians in the locality for abortions and maintained an office file listing physicians who performed this procedure. Respondent testified that on the evening of April 19, 1975, he was conducting a group therapy session in his office and finished about 10:50 p.m. He later received several telephone calls from Burton from which he gained the impression that she might have taken some medication and could be physically ill, or that she was trying to get him over to her place to try to seduce him. He asked another patient, Christine Carlton, to accompany him to Burton's apartment to ascertain her condition, but she declined to go with him at that time. Respondent testified that he had asked Burton to call a cab or an ambulance, but she insisted that he come over to her apartment, stating that she was "too dizzy" to drive out herself. He testified that he then proceeded to her apartment after stopping to buy an ice cream cone, since he had not eaten all day. He did not believe there was a genuine emergency because of Burton's history of "rescue" fantasies and, in any event, thought he would have several hours if she had actually taken an overdose of drugs. When he arrived at Burton's apartment, he found her in a chair facing the door, and she did not respond to his greeting. He saw blueness in her legs and took her pulse, and patted her on the face. He picked her up, put her on the couch and checked her corneal reflex, and then started artificial respiration. He called the emergency squad while administering artificial respiration. He testified that when he heard the approaching sirens of the rescue squad, he went out on the apartment landing and saw a man ducking behind the bushes. He also testified that he had seen someone running down the stairs when he first arrived at the apartment. He denied strangling Burton. Dr. Joan Wood, Deputy Chief Medical Examiner for the Sixth Judicial Circuit, testified that, although the medical examiner, Dr. Feegel, had originally determined that Burton's death was caused by strangulation, he modified his opinion in his testimony at Respondent's trial to include the possibility of accidental death. Dr. Wood has reviewed all of the medical reports concerning thee deceased, and is of the opinion that the pathological studies and reports are insufficient upon which to determine the cause of death within a reasonable medical certainty. As a result of the foregoing findings, the following additional findings are made: Insufficient competent evidence was presented to establish that Respondent had a sexual relationship with Cassandra Burton and that he caused her pregnancy. Although the evidence shows that Respondent's association with Burton was of such a nature as to greatly exceed the bounds of a normal psychiatrist-patient .relationship, it was generally in keeping with his compulsive personality which, as described by Dr. Warren, the examining psychiatrist, involved a tendency to try and please women, particularly hysterical ones. Other expert and lay testimony showed him to be an individual who became excessively involved with his patients. At the time of the death of Cassandra "Sally" Burton on April 19, 1975, for which Respondent was thereafter found guilty of manslaughter, Respondent was acting in the role of a psychiatrist or physician, as evidenced by the deceased's request to him for medical assistance and his attempted response thereto in such capacity. (Testimony of Respondent, Burdette, Freeman, Daggett, Ross, Adams, Wood, Silverman, Jones, Carlton, Mezrah, Thomas, Gardner, Ricker, Petitioner's Exhibits 12-16, 21, Respondent's Exhibits 4-5, 8). It was the practice of Respondent to have his secretary, Jean Jones, prepare his yearly applications to the Drug Enforcement Administration, Department of Justice, for renewal of his registration to dispense controlled substances pursuant to Federal law and regulation. She customarily prepared the application which was signed by Respondent and, in years prior to 1980, he had obtained registration to dispense Schedule II through V controlled substances. His application for renewal of registration which expired on November 30, 1979 was prepared by a different secretary due to Jones' absence, and the application signed by Respondent inadvertently reflected a request for renewal of authority to dispense only Schedule III and IV substances. Respondent was unaware that his registration renewal did not include authority to dispense Schedule II drugs. During the period March 6 through October 31, 1980, Respondent prescribed Class II controlled substances without proper registration to Lileen Dunn for Mepergan Fortis and Percodan, Anne Pizzo for Dexedrine, William Gray for Ritalin, Nick Douzanis for Desoxyn, Patty Crist for Amytal, Elio Alvarez, Jr. for Quaaludes, John Adams for Dexedrine, Harold Wyatt for Quaaludes, Karen Berrian and Janet Anifant for Dexamyl. On October 2, 1980, Respondent prescribed Noctec for himself which was filled at a Tampa pharmacy. Noctec is a Schedule IV controlled substance. Thomas Rowley had taken his wife to Respondent for treatment in the summer of 1980 and such treatment continued into December of that year. Although Respondent had provided Rowley with some samples of Noctec for his wife, and prescribed medicine for her in Rowley's name to prevent Mrs. Rowley from taking an overdose of medicine, Rowley had never received or obtained Noctec on a prescription which named Respondent as the patient. Respondent's registration to dispense controlled substances has included Schedule II drugs for 1981 and 1982. (Testimony of Jones, Dodd, Paige, Rowley, Petitioner's Exhibits 1-3, Respondents Exhibits 2, 7). Respondent's driver's license was suspended for driving infractions in October, 1976 and reinstated in June, 1978. After Respondent returned a car he had borrowed from a patient, Pierce Brereton found a Florida driver's license in the glove compartment in the name off Albert Bela Klein, but bearing a photograph of Respondent. Kein had died on June 24, 1972, but records of the Department of Highway Safety and Motor Vehicles show that three speeding Violations were charged against his license in 1977-78. (Testimony of Brereton, Petitioner's Exhibits 9-11) Pursuant to an Order issued by the Secretary, Department of Professional Regulation, on June 11, 1981, under subsection 458.331(1)(s), Florida Statutes, Respondent submitted to a psychiatric evaluation by Dr. George L Warren of Clearwater, Florida during the period July 31--August; 17, 1931. In addition, psychological testing of Respondent was performed by Dr. Richard N. Fran on August 7, 1981 As a result of the examination and testing, Dr. Warren concluded that Respondent suffered from a mild degree of impairment, most likely due to alcohol abuse which had caused some degree of brain damage, and a compulsive personality disorder. However, he did not feel that Respondent was suffering from a sufficient mental or emotional impairment which would adversely impact on his ability to practice medicine with reasonable skill and safety to patients. When he testified at the hearing, Dr. Warren disclosed that Respondent had contacted him the night before and disclosed that he had "borrowed" a driver's license during the pendency of criminal charges against him. Respondent had not disclosed this information to Warren during the previous psychiatric examination Dr. Warren testified on direct examination that the possession and use of the false driver's license by Respondent constituted antisocial behavior and than as a result of Respondent's disclosure, he would modify his opinion to find that Respondent was not able to practice medicine with skill and safety to patients. However, upon cross-examination, he stated that that fact alone would not change his opinion, but that he would have to reevaluate the case based on the factual correctness of matters contained in various hypothetical questions posed to him which were based upon the other charges in the Administrative Complaints. (Testimony of Warren, Petitioner's Exhibit 22, Respondent's Exhibit 1). Respondent has been treated by a psychiatrist during the past year and, in his opinion, Respondent is a highly intelligent, well qualified psychiatrist who is competent to practice his profession. Additionally, several psychiatrists who have known Respondent in the past are of the same opinion. (Testimony of Afield, Gardner, Silverman, Thomas, Respondent's Exhibit 9).
Recommendation That Petitioner Board of Medical Examiners revoke the license of Respondent Louis J. Tsavaris to practice medicine pursuant to Chapter 458, Florida Statutes. DONE and ENTERED this 6th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 6th day of August, 1982. COPIES FURNISHED: Deborah J. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Grover C. Freeman, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 William S. Lancaster, Esquire 1715 Tampa Street Tampa, Florida 33602 Frank Ragano, Esquire 620 East Twiggs Street Tampa, Florida 33602 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Michael Schwartz, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1991 Petitioner was 18 years old. She and her family lived in a very violent area of Gretna, Florida. Until the incident which is involved here, Petitioner had managed to stay out of trouble and avoid becoming mean and violent like many of her neighbors. Sometime in 1996, Petitioner was employed by the Cerebral Palsey Foundation to care for its disabled clients. Petitioner's duties included direct contact with the clients of the Cerebral Palsey Center. The background screen revealed that on June 19, 1991, Petitioner was arrested for aggravated assault. The arrest was the result of a verbal altercation between a young woman who lived down the street from Petitioner, and Petitioner, and members of Petitioner’s family. The young woman was a vicious bully, known to be violent and to carry a knife which she would readily use on those she victimized. Petitioner had personally witnessed several times that the woman cut other people she was fighting with her knife. After an exchange of words, the young woman chased Petitioner home, threatening serious bodily harm. Petitioner believed she had her knife with her. She was terrified and knew that if she did not stand up to this woman, she would not be safe from her. After Petitioner got home, she got her brother’s shotgun and went back outside to the street with the weapon. Petitioner did not point the weapon at the woman, even though the woman was taunting her to “go ahead and shoot her.” Petitioner simply stood with the weapon in her hands. Petitioner was scared, not thinking clearly, and only wanted the woman to go away. The police arrived within a short time after Petitioner exited her home. She obeyed the commands of the officer when he told her to put the weapon down. The officer arrested everyone involved in the altercation, including the woman who had chased Petitioner. Petitioner plead no contest to one count of aggravated battery, a felony. As a consequence of the plea, Petitioner was fined the minimum amount and sentenced to two years probation. Adjudication of guilt was withheld. Petitioner successfully completed her sentence during which she received counseling for anger control. The anger control counseling was terminated by the counselor after two sessions because Petitioner did not have poor anger control but was young and scared when the incident occurred. This incident was the one and only time Petitioner had been in trouble. She has been a good citizen since. Petitioner has since matured greatly and has had a child. She has managed to educate herself and gain the necessary skills to become an aide in an adult facility. She is also on her way to finishing her degree to become a licensed practical nurse. The greater weight of the evidence and the more remarkable evidence in this case, is that Petitioner did not succumb to the violent neighborhood in which she lived. This incident occurred because she was young and very scared of a person most people would be and should be scared of. When she was able, she moved out, received an education and has continued to make herself a better person. These qualities say more good things about Petitioner’s character than one anomalous violent incident to which she reacted. In short, Petitioner’s history shows that she is of good character and is not a violent person. Moreover, through her education, she has received training on how to deal with an aged or disabled adult who might be violent. The setting and aggression of an aged or disabled adult is simply not the same as the setting and intentionally malicious, bullying violence with which Petitioner was confronted when she was 18 years old. Her reaction then at 18 is not indicative of her reaction now. Based on the record in this case, Petitioner has established by clear and convincing evidence that (a) her plea of no contest to aggravated assault was not the type of incident which would absolutely preclude her from working with disabled or elderly persons; (b) that the aggravated assault was the result of self-defense from a person of violent character and understandable fear of that person; (c) that she will not be and is not a danger to disabled or elderly persons with which she might come into contact; and (d) that she was never a person lacking in moral character and was never a danger to such disabled or elderly persons. The Petitioner is therefore entitled to an exemption from disqualification from employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order granting Petitioner, Titesheia Sherman, an exemption from disqualification from employment. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998. COPIES FURNISHED: Titesheia Sherman Post Office Box 567 Quincy, Florida 32351 Charles A. Finkel, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 200A Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be determined are whether Respondent engaged in unprofessional conduct by using force against or striking a patient, in violation of sections 464.204(1)(b) and 464.018(1)(h), Florida Statutes, and Florida Administrative Code Rule 64B9-8.005, as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Nursing, is the state agency charged with regulating the practice of nursing, including nursing assistants, pursuant to section 20.43, Florida Statutes, and chapters 456 and 464. At all times material to this proceeding, Respondent was a CNA in the state of Florida, holding certificate number CNA 286629. Respondent’s current address of record is 5713 Ibizan Court, Orlando, Florida 32068. Respondent has practiced as a CNA for approximately 30 years. Except for this incident, Respondent has never been subject to discipline against his CNA certification in either New York or Florida. Prior to moving to Florida, Respondent worked for 22 years at a New York prison psychiatric ward, and at the Nassau University Health Center, both located in the state of New York. Upon moving to Florida, Respondent worked as a CNA at Halifax Health Behavioral Services, and then at Florida Hospital in the medical/surgical unit. Respondent is currently employed at Orlando Health. His duties include working with psychiatric patients, assisting them with everyday living skills, maintaining the living unit, and interacting with patients for their care. There was no evidence as to whether Respondent’s employment at Orlando Health is as a CNA. Nonetheless, Respondent has had no issues during his time at Orlando Health. Over the course of his career, Respondent has had extensive interactions with dangerous and aggressive patients. That experience required training on de-escalating potentially violent situations. He was instructed to talk to patients; learn and know their movements, including eye contact and body movements; and keep a safe distance from and not stand directly in front of patients. Respondent started working at the Darryl Strawberry Recovery Center in DeLand in November 2016. He took the job as a part-time second job to help pay for his upcoming wedding. His brother worked at the facility and advised him of the opening. His duties were to monitor patients, collect data from them, and assure a safe and therapeutic environment. Among his duties, Respondent was also to serve as a driver, picking up patients from various places around the state for admission to the facility, and taking them back to their home cities upon discharge. Although Respondent had received de-escalation training for other jobs, the Darryl Strawberry Recovery Center offered no such training. There were, according to Respondent, no protocols provided to staff on how to de-escalate and handle aggressive patients. Had such been provided, then a standard protocol of having two staff persons involved in an intervention could have been employed. Without such protocols, Respondent was left to address the situation described herein as capably and safely as possible. In December 2016, Respondent picked up J.B., who was living on the streets of Cocoa Beach, to transport him to the Darryl Strawberry facility. J.B. suffered from alcohol and drug addiction. During the ride from Cocoa Beach to DeLand, they discussed J.B.’s mixed martial arts (MMA) training, J.B.’s opinion that bigger guys no longer have a fighting advantage because MMA fighting has leveled the field, and that J.B. believed he was able to disarm any combatant and win every fight in which he is involved. J.B.’s statements are hearsay, but they are being recited here not for the truth of the matters asserted, but to establish Respondent’s mental state during the confrontation that followed. After the transport in December 2016, Respondent had no contact with J.B. until February 18, 2017. On February 18, 2017, Respondent was scheduled to transport three patients who were being released from the facility. Two patients were to be transported to Cocoa Beach, and one to Miami. When Respondent arrived, there was a “discrepancy” as to who he was to transport, with there being talk of adding another patient. He did not know who the patient was to be, but did notice J.B. lying on a bench at the far side of a small recreational area. Respondent’s testimony was that J.B. was “dope sick,” having used drugs the previous evening, and that he was “back to the beginning.” He was belligerent, spewing vulgar and racist epithets, and generally creating a scene. Shortly after Respondent’s arrival at the facility, he returned the telephones, wallets, and property to the patients that he was to be transporting, items which are normally not allowed on-premises. Since there was still a delay caused by the debate on J.B.’s departure (i.e., whether the facility “was essentially kicking him out” for using drugs at the facility), he had to retrieve the items, which caused additional issues beyond the scope of this proceeding. The incident that forms the basis for the Administrative Complaint is depicted on a surveillance video. The video was taken from a fixed position. It depicts the side of a building, the end of a parking lot, and a small recreational area with several benches and a cornhole game area. The video of the incident was grainy, with poor resolution. It had no audio. Although the video indicated that it covered the period from 10:15 a.m. to 11:15 a.m., it was only 23 minutes and 6 seconds in length, with roughly 30 seconds of that time taken up with the title and a privacy warning. The video has unexplained gaps that occur at critical times, including a two-and-a-half minute gap immediately before the incident (from 10:34:54 a.m. to 10:37:27 a.m.), and a 30-second gap immediately after the incident (from 10:38:02 a.m. to 10:38:33 a.m.). The beginning of the video at 10:14:56 a.m. shows quite a few people milling about the building and the recreation area talking, playing cornhole, and exchanging greetings, hugs, and handshakes. The crowd is consistent until it begins to disperse starting at around 10:31:50 a.m. By 10:33:00 a.m., the area is virtually vacant, with a person sitting alone on one of the benches on the left side of the recreation area. The video is too grainy to discern who that person is, or who else might be in the area. At 10:34:00 a.m., a black male walks out, converses with another gentleman, sips his drink, and sits on a bench at the right side of the frame, at which time the two-and-a-half minute gap occurs. When the video picks back up, the person on the right side bench remains, the person on the left side bench has disappeared, and J.B. can be seen sprawled on a bench near the rear of the recreation area. Whether the person on the left side bench and J.B. were one in the same is unknown. At 10:37:38, J.B. is seen to spring from his bench, strip off his jacket, and walk quickly towards the building. His posture and demeanor can only be described as agitated and aggressive, with chest-thumping followed by outstretched arms. Respondent is seen walking from the side of the building. Although he “closed the gap” with J.B., his approach was calm, and towards J.B.’s side, which was consistent with his earlier testimony that one should not approach from the front. Respondent’s hands were at his side and were not tensed, nor were his hands clenched. The reasons for moving toward J.B. were two- fold -- to continue to talk with him in an effort to de-escalate the situation, and to move away from the other nearby patients to minimize the possibility of their involvement. He recalled J.B.’s statements regarding his MMA training, and was concerned with J.B. “getting off a punch.” He tried to defuse the situation, telling J.B., “Listen, calm down man. You know this -- this is not going to go anywhere. There’s better ways to handle it.” J.B. turned to face Respondent, head bobbing and clearly continuing to talk. Respondent testified that J.B. stood at that time, with fists clenched, and stated “I’m sick of you fucking niggers.” That action first caused Respondent to believe that he was in danger. Respondent’s testimony is consistent with J.B.’s gesticulations. J.B. moved his head towards Respondent, and Respondent testified that J.B. then feigned a blow, that “[h]e flinches.” Although it is difficult to discern on the poor quality video, Respondent’s testimony is credible and accepted. Respondent, in what can best be characterized as a reflexive act of self-preservation, determined that “[n]ow in my head I’m hit so I swung, connected.” There is no question that Respondent struck J.B. more than once in rapid succession. It is this act that forms the sole basis for the Administrative Complaint. After the initial blows, the scene was, understandably, chaotic. J.B. was back on his feet. At that point, the video experienced another gap of 30 seconds. When the video picked back up, Respondent is clearly speaking to J.B., with another person keeping them separated. Respondent testified that he “continued to ask him, you know, ‘Put your hands down. It don’t have to go any further. Stop. You know, just relax, relax, relax.’” There was no evidence to the contrary, and Respondent’s testimony is accepted. There was testimony as to things that happened in the following time period that Respondent testified were “to de-escalate the whole entire thing.” However, post-incident actions were not pled as being pertinent to the allegations warranting discipline. Respondent has not disputed that he struck J.B. Thus, the undersigned considers this proceeding as including a determination of whether Respondent’s action was defensive and reactive, and bearing on the severity of the appropriate penalty within the range established in the penalty guidelines. Petitioner understandably relies on the video of the event to support its argument. Respondent, in his deposition testimony, discussed the gaps, the angles, the lack of audio, and the “trouble viewing.” Those elements highlight the weaknesses and biases inherent in single vantage-point videos. Instead of reciting the strengths and weaknesses of video evidence, the undersigned hereby adopts and incorporates the thorough and well- considered analysis of video evidence set forth in paragraphs 15 through 25 of Administrative Law Judge John G. Van Laningham’s Recommended Order in Indian River County School Board v. Joseph Nathaniel, Case No. 16-0272TTS (Fla. DOAH Jan. 31, 2017; Indian River Co. Sch. Bd. Feb. 27, 2017). Given the issues with the video described herein, the undersigned has accepted the description of the events in the testimony of Respondent, whose deportment and presentation at the hearing gave no suggestion of evasiveness or prevarication. Respondent was arrested for his role in the February 18, 2017, incident. The charges were dismissed. Without doubt, Respondent struck J.B. That response was not one taught in the training Respondent had received in his other jobs. However, under the circumstances here, there was little time to react. CNAs are expected to exercise good judgment and self-restraint when dealing with aggressive and violent patients and, but for this isolated and extreme incident, Respondent has done so for roughly 30 years. Respondent took reasonable measures to de-escalate J.B.’s aggressive and violent actions and to separate other patients from J.B. and himself for the safety of all involved. Respondent’s reflexive act when he perceived that J.B.’s blow was being struck does not indicate a lack of good judgment or moral character necessary to practice as a CNA in a manner that is safe for patients, but was a defensive act of self-preservation, taken in legitimate fear and anticipation of assault.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order: finding that Respondent engaged in unprofessional conduct under sections 464.204(1)(b) and 464.018(1)(h), as defined by rule 64B9-8.005(13), by intentionally striking J.B.; imposing a period of probation for one year with reasonable conditions to be determined by the Board of Nursing; imposing a fine of $50; and requiring Respondent to pay the costs related to the investigation and prosecution. DONE AND ENTERED this 25th day of May, 2018, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of May, 2018. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Tony L. McGee, C.N.A. 5713 Ibizan Court Orlando, Florida 32810 Hannah Phillips, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Jody Bryant Newman, EdD, EdS Department of Health 4052 Bald Cypress Way, Bin D02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Lewis J. McLean, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on January 18, 1982, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. Final hearing in this case was conducted on April 2, 1982, following a continuance of the originally scheduled hearing date of February 25, 1982, which continuance was granted to the Petitioner to allow him to attempt the employment of counsel to represent him in this action. In the course of the final hearing, the Petitioner testified in his own behalf. Respondent offered as witnesses: Robert Alcorn, Clinical Director, Mentally Disordered Sex Offender Program at Florida State Hospital, and Charles Schaefer, Clinical Psychologist. Respondent submitted two (2) items of evidence which were received. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with the court order. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving Lewd and Lascivious and Indecent Assault or Act upon a child under the age of fourteen (14) related to the handling, fondling or making an assault upon that child, without the intent to commit sexual battery, by committing fellatio on the victim. The commitment order to the program dates from May 23, 1979, and the Petitioner was placed in the Forensic Service, Mentally Disordered Sex Offender Unit at Florida State Hospital on July 30, 1979. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder, Pedophelia, has reached a place where improvement is no longer expected by the patient. In the face of these circumstances, Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer opportunities for progress. Those opinions having been made known to the Petitioner, Petitioner requested and was granted the hearing which lead to the entry of the Recommended Order. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. The most recent of these summary statements was prepared from the session of November 18, 1981. In brief, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's Pedophilia. Moreover, the presentation of Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of administrative personnel of the various sex offender programs in the State of Florida, correctly concluded that the Respondent has exhausted all available treatment for the Petitioner in any program in the State of Florida. Finally, testimony given in the course of the hearing was in keeping with the opinions expressed in the clinical summaries and the opinions held by the members of the Intra- Departmental Screening Committee. Notwithstanding the efforts of the Respondent, Petitioner continues to meet the definition of sex offender as set forth in Chapter 917, Florida Statutes, to include the propensity to commit further sexual offenses of the nature for which he was placed in the Sex Offender Program. Charles Schaefer became the Petitioner's primary therapist in August, 1981, and has continued to perform that function. Schaefer's testimony establishes that Petitioner's stay in the program, in terms of duration, has been average. Schaefer continues to meet with the Petitioner in group therapy sessions, which sessions are the primary focus of the treatment modality. These sessions occur four (4) times a week and the patients within those sessions, through discussion, are primarily responsible for bringing about an understanding of the underlying disorder which caused their placement in the program. In addition, McLean has participated in individual therapy sessions with Schaefer and in adjunctive therapy, in particular small engine repair. At the time that Schaefer undertook the care of Petitioner as primary therapist, he reviewed the past clinical reports and matters of record on file at Florida State Hospital and noted that those reports indicated that Petitioner was superficial in his understanding of his sexual deviation and had little or no insight into why he had committed the offense which caused his placement. These recorded observations were accurate in outlining Petitioner's condition. Over the period of time of his attendance in group sessions with Schaefer, Petitioner has ceased bringing his problems to the group therapy sessions to discuss them with others and his problems were only discussed in group, based upon other members within the group learning of those problems by conversations held with Petitioner while on the ward and carrying forward the topics at group sessions. This form of ward discussion is not designed and will not achieve improvement in Petitioner's understanding of his sexual deviation. Moreover, Petitioner tends, in the course of the group sessions, to minimize the severity of his problems and is more motivated toward being relieved of the responsibility of dealing with the problem and being removed from those sessions, as opposed to attempting to understand and deal with his aberrant life style. Schaefer, in his attempts to assist the Petitioner, tried an approach which gave the Petitioner great latitude to find a way to discuss the patient's problem. This method was followed by a more confrontive style of working with Petitioner. Neither of these choices was successful and the Petitioner has continued to be evasive, silent in group therapy sessions and has only talked in those sessions when confronted with a direct question. On those occasions, McLean gives answers which are short and uninformative. Schaefer has taken McLean out of the patient volunteer work program as a means to achieve better performance in group therapy sessions. This form of motivation has not borne a better result in terms of participation. Neither has the attempt to have individual therapy sessions once a week lead to any better result. In those individual therapy sessions with Schaefer, Petitioner has not talked. Recently, McLean has been dealt with only through the group therapy sessions and no progress has been made in dealing with his condition. It is only on a couple of occasions within the last nine (9) months that McLean has been forthright in his discussion of his condition. As can be seen in the Respondent's Exhibit 1, admitted into evidence, in the November, 1981, staffing conference, to consider the question of his retention in the program, Petitioner stated that he knew that he needed more help and felt that he could benefit from another six (6) months' stay in the hospital so that he could become a former sex offender and not be felt to meet the criteria related to sex offenders. At present, McLean seems satisfied with his personality as it now exists. That personality allows him to perform in an acceptable fashion on the hospital ward and in the adjunctive therapy involvement; however, he would not be appropriate in a social circumstance which gave the Petitioner opportunity to commit a further sexual offense. Robert Alcorn, the Unit Director at Florida State Hospital, in charge of the Sex Offender Program, indicated that the McLean case had been presented to the Intra-Departmental Screening Committee described herein. This was done on December 31, 1981, and as indicated in Respondent's Exhibit 2, it was the opinion of all administrative officials in the various programs that Respondent had exhausted treatment for McLean's condition. McLean, through his testimony in the course of the hearing, indicated that he feels that he has done his best and that he tries to express himself on the subject of his Pedophilic condition. Nonetheless, he feels that he has a problem discussing those matters in a group setting and that he is uncomfortable talking to members of the group. He does feel that he has brought some problems to the group discussion. In his mind, the reason that he committed the crime for which he was placed in the program, was based upon his tendency to "keep everything in" and his difficulty communicating with his wives. He does not feel that he will commit a sex offense in the future and that he could address his problems by talking to a marriage counselor or someone of that nature. He feels that he is well, but he would like to stay in the program if it is determined that he is not ready to be released. In summary, the Respondent has exhausted all appropriate treatment for this Petitioner's sexual disorder, but that treatment has not been successful and the patient continues to suffer from that condition and continues to pose a danger to commit another sex offense.
