The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Dianne M. Sartin is a licensed practical nurse. She was hired by Bay Medical Center in December of 1978. Ms. Sartin initially was hired as a nurse on the surgical medical floor. After one year, Ms. Sartin left the hospital to go to North Carolina with her first husband. She soon returned to Bay County and resumed her employment with Bay Medical Center. A short time after her return, she accepted a full time position in the hyperbaric medicine department. 1/ Ms. Sartin has since become a specialist in nursing care involving hyperbaric medicine and is one of a very limited number of nurses in the nation who can claim such a specialty. Petitioner is a person as defined by the Florida Human Rights Act of 1977. 760.02(5), Florida Statutes, (1990). Bay Medical Center is a health care institution established to support, manage and furnish facilities, personnel and services to provide diagnosis, medical, surgical and hospital care to those persons residing in the hospital's primary, secondary and tertiary service areas. In this capacity, Respondent employs a large number of personnel; and therefore, is an employer as defined by the Florida Human Rights Act of 1977, 760.02(6) Florida Statutes (1990). William Sartin, the Technical Director of Hyperbaric Medicine, was Dianne Sartin's immediate supervisor during the entire time Ms. Sartin worked in the hyperbaric medicine department. As Director, Mr. Sartin conducted employee evaluations of Ms. Sartin and was the individual responsible for disciplining Ms. Sartin if discipline was warranted. Those employee evaluations indirectly affected her pay raises. Mr. Sartin was also the person responsible for preparation of all the work and on- call schedules, including those of Ms. Sartin. The on-call schedule determined who would be called during evening and weekend hours should hyperbaric care be required. An individual who was on-call was required to carry a beeper at all times and be available for emergency runs in the hyperbaric chamber whenever notified. The individual would receive a stipend for being on-call in addition to receiving pay for time the individual was actually at the hospital performing work in the hyperbaric department. Petitioner and Respondent worked closely together over the years. At the time Ms. Sartin began to work in the hyperbaric department, there was not a personal romantic relationship between her and Mr. Sartin. However, in 1983, the Sartins began dating. On March 30, 1985, Petitioner and Mr. Sartin were married. At the time of their marriage both Mr. and Ms. Sartin were aware of the hospital policy prohibiting an individual from being the immediate supervisor of his or her spouse. Knowing that he and Ms. Sartin would be in violation of the policy subsequent to their marriage, Mr. Sartin requested that Ms. Sartin be allowed to continue working in the hyperbaric department due to Ms. Sartin's expertise in hyperbaric medicine and the lack of qualified nurses in the area of hyperbaric medicine. This request, was granted, in part, by the Administration who permitted Ms. Sartin to work in the hyperbaric medicine department but only for a six month period or until a replacement could be found. The Administration expressed its concern in waiving the hospital's nepotism policy and required Mr. Sartin to make sure there was adequate staffing so that Ms. Sartin's services in the department would not be needed by the end of the six month period. During this time period, Ms. Sartin would be employed as an independent contractor by Respondent and would not be considered a regular employee. After the initial six month period ended, Mr. Sartin again requested that Ms. Sartin be permitted to work in the hyperbaric department. Michael L. Norman, Assistant Administrative Director, reluctantly agreed to extend Ms. Sartin's period of employment in the hyperbaric medicine department. Mr. Norman reiterated that the rehiring of Ms. Sartin was strictly temporary in order to allow Mr. Sartin time to provide or find adequate staffing for the department. In addition, Mr. Sartin was informed that his next evaluation would reflect his success in recruiting a qualified replacement. Mr. Sartin's inability to find a qualified replacement for Ms. Sartin was due to the fact that there were a very limited number of nurses who are qualified in hyperbaric medicine and that there is little interest in the nursing community to become so qualified because of the working conditions required by hyperbaric medicine. During this second contract period, Sherine Thompson, the Personnel Director for Bay Medical Center from February 1984 to October 1986, indicated to Ms. Sartin and her husband that if the Sartins obtained a divorce decree both could continue working together. The evidence was not clear on whether Ms. Thompson or another Bay Medical Center official indicated whether they could continue to live together enjoying all the other aspects of marriage and maintain their present employment situation. However, after the second contract's time period had elapsed and Mr. Sartin had not found a replacement, Mr. And Mrs. Sartin divorced so that Ms. Sartin could continue working in the hyperbaric department. 2/ Other than dissolving the marriage, the relationship between Mr. and Ms. Sartin did not change after the divorce and they continued living together as if they were still married. Subsequent to the divorce, Ms. Sartin was placed back on regular employment status and was allowed to continue working for Mr. Sartin until January 18, 1989. At that time, William Touchstone, a co-worker in the hyperbaric department, filed a grievance concerning the Sartins. The grievance alleged, among other things that Ms. Sartin received preferential treatment as to pay for on call time which she was not scheduled to work. The grievance also alleged that she was permitted to arrive at work any time she pleased. The year before the grievance was filed, Mr. Touchstone received the highest possible score an employee could receive in his evaluation. This evaluation was completed by Mr. Sartin. However, irrespective of this evaluation, the evidence demonstrated that there were some major problems between Mr. Touchstone and Mr. Sartin prior to the filing of the grievance. Primarily, Mr. Sartin was unhappy with Mr. Touchstone's performance when he was on-call and when he was working his regular hours. Mr. Sartin had tried to have Mr. Touchstone terminated just prior to the date Mr. Touchstone filed his grievance. From this evidence it appears that the grievance was motivated, in part, by a desire for vengeance by Mr. Touchstone. Subsequent to the filing of the grievance, and pursuant to hospital policy, Stephen Adrianse, Director of Human Resources reviewed the grievance and the applicable hospital policies and procedures. Mr. Adrianse spoke to Mr. Sartin, Mr. Touchstone and Mr. Norman as to the allegations contained in the grievance. Mr. Adrianse requested more evidence be submitted to support the grievance. Mr. Touchstone provided the additional evidence which consisted of time records and patient treatment start times. These records showed that Ms. Sartin arrived for work at various times and almost always at least 15 to 45 minutes past the scheduled work time of 8:00 a.m. Ms. Sartin's arrival times were due, in part, to the fact that, Mr. Sartin maintained a flexible working schedule due to the exigencies of hyperbaric medicine. In essence, his employees did not have a fixed working day and were only required to be present before a hyperbaric chamber run started. However, these time records also showed that Ms. Sartin clocked-in much later than the time a patient treatment was to commence thus causing others to perform parts of treatments without adequate staffing. The grievance investigation also revealed that Ms. Sartin's name never appeared on the "on-call" schedule even though her payroll records indicated that she had many times received stipend "on-call" pay. Mr. Sartin testified that Ms. Sartin had been paid for on-call duties she performed when the person who was scheduled, namely Mr. Touchstone, could not be reached or was incapacitated. After a thorough review of all the evidence, Mr. Adrianse recommended to Mr. Norman that Ms. Sartin be transferred due to the appearance of preferential treatment received by Ms. Sartin. 3/ On March 22, 1989, Mr. Norman sent a memorandum to Mr. Sartin requesting that Ms. Sartin submit a transfer request as soon as possible. This memorandum indicated that there were many other LPN positions available to Ms. Sartin. A day later, March 23, 1989, Mr. Norman revised and corrected his previous memorandum and informed Mr. Sartin that either he or Ms. Sartin could either transfer to another department or resign. 4/ The Respondent's decision was not based on either Ms. Sartin's marital status or her sex. Subsequent to this March 23, 1989, memorandum, Ms. Sartin came to Mr. Adrianse's office and discussed the possibility of her transferring to another department. Mr. Adrianse explained to Ms. Sartin the different options available to her as well as the options available to Mr. Sartin. A cut in pay would have accompanied any transfer Ms. Sartin made. There was no evidence of the amount or duration of this pay cut and the evidence did not otherwise demonstrate that this cut in pay would be intolerable or would create any conditions of employment which would force Ms. Sartin to resign. On April 7, 1989, Ms. Sartin submitted her resignation from the hospital. The evidence demonstrated that Ms. Sartin chose to resign because she determined it was more important for Mr. Sartin to continue as director of the hyperbaric medicine department since his paycheck was larger than hers. There was no evidence submitted as to the transfer options available to Mr. Sartin, although the evidence suggests such options were available. On April 17, 1989, Mr. Adrianse sent a letter to Ms. Sartin once again explaining to her that she did not need to resign and that either her or Mr. Sartin would have the option to simply transfer to another department. On April 20, 1989, Ms. Sartin tendered a second written resignation form the hospital. On April 23, 1989, Mr. Sartin requested that Warren Wilson's status be changed from part-time to full-time so that he could assume Dianne Sartin's position. Mr. Wilson is outside Ms. Sartin's protected class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint. RECOMMENDED this 8th day of August, 1991 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 8th day of August, 1991.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent's license to practice medicine should be revoked, or otherwise disciplined, on the ground that he, as alleged, violated the Medical Practice Act, Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979), by engaging in immoral, unprofessional con duct, incompetence, negligence, or willful misconduct, including failure to conform to the prevailing medical practice in the field of psychiatry.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I. The Doctor Respondent, Michael L. Solloway, M.D. ("SOLLOWAY") is licensed to practice medicine in Florida under License No. 11845, issued by the Board of Medical Examiners. He obtained his medical degree from the University of Miami, interned in the United States Air Force, was honorably discharged, and returned to Miami in 1968 to begin a three-year residency training program at Jackson Memorial Hospital. In 1971, he opened a private office at Suite 720, Dupont Plaza Center, Miami, Florida, and has continuously engaged in the practice of psychiatry at that location since that time. (P.E. 4.) II. The Patient On May 9, 1973, SOLLOWAY began treating, Sandra A. Lerner, a 19-year- old female. She continued receiving long-term dynamic psychotherapy from SOLLOWAY for over three (3) years--until May 16, 1977--the date when the complained-of sexual misconduct allegedly occurred. The only significant interruption of psychotherapy treatment occurred between September 30, 1974, and July 11, 1975, for reasons which are immaterial here. (Testimony of Lerner; P.E. 1, 4.) In 1973, Sandra Lerner was diagnosed by SOLLOWAY as suffering from a personality disorder--known as borderline personality. Her disorder manifested itself in poor impulse control, somatic symptoms (such as severe headaches), difficulty in relating to others and forming personal relationships, occasional hystrionic behavior, including severe rage reactions and depression when thwarted by others, and no-addictive dependence on drugs. Prior to her referral to SOLLOWAY, she had been hospitalized after an overdose of Quaaludes and received psychological testing from Gloria O. Greenberg, Ph.D., a psychologist. These tests indicated that Miss Lerner was an infantile, egocentric, hostile individual--one who had been lonely, withdrawn, and alienated for a long period of time. She had a conflicting relationship with her father which caused her serious sexual problems and an intense fear of male sexuality. Dr. Greenberg predicted that, in psychotheraphy, Miss Lerner could be expected to be childish, demanding, and manipulative. (Testimony of Lerner; P.E. 1, 2, 4.) III. The Psychiatrist-Patient Relationship During the course of her psychotherapy, Miss Lerner was a sick and troubled woman, erratic, unpredictable in behavior, and desperately needing to form and maintain a personal relationship. Her therapy sessions with SOLLOWAY, held once or twice a weak, allowed her to experience complex psychological phenomenon known as "transference". She began to feel sexual fantasies and form a personal attachment toward SOLLOWAY; she idealized him and saw him as a nurturing father figure. "Transference" is frequently experienced in psychotherapy; it can be a valuable therapeutic tool to help patients understand and overcome their illness. In this case, SOLLOWAY was aware that "transference" was taking place during his extended therapy sessions with Miss Lerner. However, instead of maintaining a professional detachment, SOLLOWAY began to experience personal and subjective feelings toward Miss Lerner, a form of "counter-transference". Prior to May 16, 1977--the date of his alleged sexual misconduct with Miss Lerner--SOLLOWAY had twice discussed with Miss Lerner that, if they engaged in dating and a social relationship, their psychotherapeutic, doctor-patient relationship must end. 2/ (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, 9.) IV. Sexual Activity During Therapy On May 16, 1977, at 5:00 or 6:00 p.m., Miss Lerner arrived at SOLLOWAY's office for her regular psychotherapy appointment. She was "high", having just taken one-half a Quaalude capsule. After entering his office, their conversation turned to the nature of their relationship. SOLLOWAY told her that he could be her boyfriend if she understood that he could never again be her doctor. 3/ After acknowledging such, she went to the door and locked it, as instructed by SOLLOWAY. At the time, she sensed what he was going to do, and felt he was testing her; she feared his rejection. He then told her to take her clothes off; after she complied, he did likewise, and both engaged in sexual intercourse. (Testimony of Lerner; P.E. 4, 9.) After that day, Miss Lerner no longer received psychotherapy treatment from SOLLOWAY. They began a stormy social relationship and briefly cohabited from June, 1978, to January, 1979, when SOLLOWAY moved out. His rejection made her hostile, angry, and vindictive. She began a campaign to harass and annoy SOLLOWAY at his home--resulting in the issuance of a temporary injunction to restrain her. Her harassment of SOLLOWAY was consistent with her personality disorder--a disorder with which she continued to be afflicted. (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, R.E. 1, 2.) V. Prescription of Drugs to Sandra Lerner: Inappropriate Medical Practice SOLLOWAY prescribed the following mood altering drugs for Sandra Lerner on the dates and in the amounts indicated: DATE DRUGS NO. OF PILLS 7/5/78 Sopor 7 7/12/78 Sopor 7 9/22/78 Quaalude or 15 Sopor 9/30/78 Quaalude or 7 Sopor 10/17/78 Quaalude or 7 Sopor 11/27/78 Quaalude or 7 Sopor 11/30/78 Quaalude or 3 Sopor 12/23/78 Quaalude or 14 Sopor 12/27/78 Percodan 30 1/2/79 Quaalude or 14 Sopor (Prehearing Stipulation of Respondent, Paragraph V, Testimony of Lerner.) Miss Lerner had a drug abuse history well known to SOLLOWAY, including Seconal and Quaalude overdoses in 1973 and a Quaalude overdose in January, 1977. By prescribing the drugs indicated in paragraph 7, supra, to Miss Lerner, a person known by him to abuse Quaaludes, SOLLOWAY engaged in an inappropriate medical practice; furthermore, the prescriptions of tranquilizers and mood altering drugs on December 27, 1978, and January 2, 1979, were excessive in quantity, irrespective of the patient's ailment which they were intended to remedy. (Testimony of Shellow.) SOLLOWAY prescribed the above drugs to Miss Lerner at a time when she was his close friend, not his patient. Such prescription of drugs to a non- patient does not constitute a deviation from an acceptable standard of medical practice, as long as the prescription is for the benefit of the individual. (Testimony of Lerner, Rose; P.E. 4.) Evidence was offered to show that SOLLOWAY used certain drugs for recreational purposes and that he prescribed drugs to others for such purposes. Such evidence, except insofar as it applies to prescriptions to Miss Lerner, is outside the scope of the DEPARTMENT's charges against him. To the extent the DEPARTMENT asserts that the prescription of drugs to Miss Lerner, as indicated above, was contrary to acceptable medical practice because she subsequently used them for recreational purposes, such assertion is unsupported by persuasive evidence. The only testimony offered to establish such a preposition was that of Miss Lerner; her credibility was impeached by her subjective demeanor, bias, evasiveness, and expressed hostility toward SOLLOWAY. (Testimony of Lerner.) VI. Medical Ethics: Sexual Activity Between Psychiatrist and Patient Prohibited Sexual activity between a psychiatrist and patient is unethical, and proscribed by the Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry (1978 Edition Revised) . The Annotations, supra, stress the paramount importance of the psychiatrist's duty to avoid gratifying of his own needs by exploiting a patient: This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psy- chiatrist. Further, the necessary intensity of the therapeutic relationship may tend to acti- vate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control . . . Section I, Paragraph 1 and 2, Principles with Annotations. VII. Investigation and Hearing by South Florida Psychiatric Society At all times material hereto, SOLLOWAY was a member of the South Florida Psychiatric Society, Inc., a district branch of the American Psychiatric Association. Membership in the Society is limited to psychiatrists practicing in the south Florida area. Miss Lerner filed with the Society a complaint charging SOLLOWAY with unethical conduct. On August 14, 1979, the Ethics Committee of the Society met to investigate the complaint and formulate a recommendation. (testimony of Holzberg; P.E. 10.) At the Ethics Committee hearing, SOLLOWAY was charged with violating Section 1, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry by (1) exploiting his patient and gratifying his own needs by engaging in sexual activity with Miss Lerner; and (2) prescribing drugs (Quaalude and Dexedrine) to Miss Lerner for non- therapeutic purposes. Miss Lerner testified, and was aided by Norma Hamilton, M.D., a psychiatrist assigned to assist in presenting her complaint. SOLLOWAY was accorded the right to confront his accuser, was represented by counsel, and was present throughout the hearing. He testified in his own behalf, and answered questions of the Committee members. At the conclusion of the hearing, the Committee unanimously sustained the charge that SOLLOWAY engaged in sexual intercourse with Miss Lerner, his patient, and exploited her to gratify his own needs, it unanimously concluded, therefore, that he was guilty of unethical conduct in violation of Section I, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry and recommended (by 4-1 vote) that he be suspended from the Society for a period of 12 months. As to the other charge, the Committee concluded that insufficient evidence was presented to support the allegation that SOLLOWAY prescribed drugs for non-therapeutic purposes, and recommended that no action be taken. On August 14, 1979, the Executive Council of the Society considered, and adopted the Committee's recommendations; by letter dated August 24, 1979, the Council recommended to the American Psychiatric Association that SOLLOWAY be suspended from membership for 12 months. That suspension recommendation is still pending, and no final action by the Association has been taken. (Testimony of Holzberg, Hamilton; P.E. 9, 10.) VIII. Termination and Sexual Activity: Breach of Accepted Standard of Care The medical ethic which prohibits sexual activity between a psychiatrist and patient applies only if a psychiatrist-patient relationship exists. The essence of SOLLOWAY's defense is that the psychiatrist-patient relationship between he and Miss Lerner ended, by mutual agreement, during the beginning of the May 16, 1977, therapy session, and prior to any sexual activity: Q. (By Mr. Glass) Dr. Solloway, you indi- cated that, in your opinion, your pro- fessional relationship as a psychiatrist to Sandra Lerner as a patient was ter- minated on May 16 of 1977. In what fashion was it terminated, how was it terminated? A. (Dr. Solloway) I suggested that it be terminated, and she agreed. Q. (Mr. Glass) And in your opinion it was terminated on that date? A. (Dr. Solloway) Absolutely. (Deposition of Michael L. Solloway; Pg. 54, P.E. 4.) Under acceptable psychiatric practice, termination of the psychiatrist-patient relationship--the ending of the psychotherapeutic bond-- requires more than the consent or acquiescence of the patient, or the stopping of formal therapy sessions. In psychotherapy, termination refers to a psychological process which takes place between the doctor and patient. 4/ They work through this transitional process together. It does not occur at any particular moment of time; the manner and length of time required will depend on the circumstances of the case--such as the condition of the patient, and nature of the doctor-patient relationship. When a patient suggests ending the psychotherapeutic relationship, the psychiatrist's task is to be supportive and allow the patient to work through the process. Not infrequently, the desire to end psychotherapy is influenced by the patient's mental or emotional illness. (Testimony of Hamilton, Holzberg, Shellow.) Under the circumstances of this case, the manner in which SOLLOWAY attempted to abruptly terminate his psychiatrist- patient relationship with Miss Lerner deviated from and breached the prevailing and accepted psychiatric standard of care and practice in his community. SOLLOWAY recognized, prior to May 16, that he was losing his objectivity toward Miss Lerner and that he was experiencing subjective feelings toward her. He was reciprocating her "transference" with his own "counter-transference"; nonetheless, instead of working through with his patient an acceptable termination of their relationship, he used her consent to termination as an opportunity to act out his "counter-transference" --by engaging in sexual activity with her. SOLLOWAY has admitted that his attempt to terminate the relationship was ineffective: Dr. Nixon: "I can understand that at the time your judgement was clouded by the counter-trans- ference. As you look back on it do you believe now that treatment can--that a doctor-patient relationship can be terminated where there is such a transference and counter-transference in that fashion?" Dr. Solloway: "No, obviously not. " (Pg. 62, P.E. 9.) (Testimony of Hamilton, Shellow, Holzberg; P.E. 4, 9.) SOLLOWAY's attempted termination of his psychiatrist- patient relationship with Miss Lerner on May 16, 1977, deviated from the accepted standard, and was not effective. By his subsequent acting out of his own counter-transference toward Miss Lerner, he sexually exploited his patient to gratify his own needs. Such conduct by SOLLOWAY was unethical, unprofessional, and deviated from the prevailing and acceptable practice in the field of psychiatry. His actions caused Miss Lerner a lengthy period of anxiety, and it will be difficult for her to reestablish a relationship with another psychiatrist which is necessary for effective treatment. (Testimony of Hamilton, Holzberg, Shellow, Lerner; P.E. 4, 9.)
Conclusions Conclusions: Respondent violated Sections 458.1201 (1)(m), Florida Statutes (1978), 458.331(1) Florida Statutes (1979), by attempting to terminate the psychiatrist-patient re- lationship with a female patient, and then sexually exploiting her for the purpose of gratifying his own needs. Insufficient evidence was presented to establish that his subsequent prescription of drugs to that patient violated the Medical Practice Act. Recommendation: Suspend Respondent's license to practice medicine for a period of one (1) year.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the DEPARTMENT suspend Respondent Michael L. Solloway's license to practice medicine, License No. 11845, for a period of one (1) year. DONE AND ENTERED this 12th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of November, 1980.
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in 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 Respondent guilty of medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's certificate of registration as a pain management clinic should be revoked pursuant to section 458.3265, Florida Statutes (2010).1/
Findings Of Fact By stipulation the parties agreed to the following: Unique is a Florida for-profit corporation; Unique is not a pain management clinic. However, Unique is registered as a pain management clinic with the Department; and Ronald and Grace Van Der Juijl are not physicians licensed under chapters 458 or 459, Florida Statutes. Unique is, therefore, not fully owned by a physician licensed under chapters 458 or 459, or a group of physicians, each of whom is licensed under chapter 458 or 459. Section 458.309(4), Florida Statutes (2009), reads, in part, as follows: All privately owned pain-management clinics, facilities, or offices, hereinafter referred to as "clinics," which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, must register with the department by January 4, 2010, unless that clinic is licensed as a facility pursuant to chapter 395. On January 5, 2010, Unique, pursuant to section 458.309(4), submitted to the Department an application for pain clinic registration. On March 10, 2010, the Department issued to Unique, pain management clinic license no. PMC 681.4/ On October 1, 2010, approximately nine months after becoming effective, section 458.309(4) was repealed. Also on October 1, 2010, section 458.3265 became effective. Section 458.3265(1) provides, in part, as follows: (d) The department shall deny registration to any clinic that is not fully owned by a physician licensed under this chapter or chapter 459 or a group of physicians, each of whom is licensed under this chapter or chapter 459; or that is not a health care clinic licensed under part X of chapter 400. * * * (f) If the department finds that a pain- management clinic does not meet the requirement of paragraph (d), . . . the department shall revoke the certificate of registration previously issued by the department. As determined by rule, the department may grant an exemption to denying a registration or revoking a previously issued registration if more than 10 years have elapsed since adjudication. As used in this subsection, the term "convicted" includes an adjudication of guilt following a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. (Emphasis supplied.) Unique is not a health care clinic licensed under part X of chapter 400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Health, enter a final order revoking Petitioner, Unique Health Care Orlando's, license to operate as a pain management clinic. DONE AND ENTERED this 8th day of November, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of November, 2011.
The Issue Whether Com-Jet Corporation (Respondent) violated the Florida Civil Rights Act by unlawfully discriminating against Gladys V. Fleites (Petitioner or Ms. Fleites) on the basis of her alleged disability.
Findings Of Fact Com-Jet Corporation repairs airplanes through its division Aircraft Systems (Respondent). Petitioner was employed as an aircraft mechanic by Respondent between June 30, 2008, and April 8, 2011. At the times relevant to this proceeding, Osvaldo Guillam was also employed by Respondent and was described as Petitioner's common law husband or significant other. Mr. Guillam and Petitioner were hourly employees. At all times relevant to this proceeding, Respondent's policy was to require each hourly employee to punch-in his or her time card when the employee arrived at work and to punch-out his or her time card when the employee left work. If an employee could not punch his or her time card because of a physical limitation, the employee was to have a supervisor punch the card for him or her. In February 2011, Melanie Alonso, Respondent's director of human relations, discovered that Mr. Guillam was punching-in and punching-out Petitioner's time card. On February 9, 2011, Ms. Alonso met with Mr. Guillam and Petitioner and told them that each employee was required to punch-in and punch-out his or her own time card. Ms. Alonso told them that one employee could not punch another employee's time card. Petitioner admitted to violating the time card policy and apologized for having done so. At no time did Petitioner indicate that she could not punch her time card due to a physical limitation. Later that day, Ms. Alonso met with all of Respondent's hourly employees and reiterated the company policy pertaining to time cards. Petitioner has had a problem with her left ankle since a fall in 2001. At the times relevant to this proceeding, Petitioner experienced pain while walking and had difficulty standing or bending. Petitioner worked at a table in a seated position. Petitioner did not have a noticeable limp. While Petitioner wore an elastic band on her ankle, that band was covered because Petitioner wore pants to work with a sock over the band. Respondent's management did not know that Petitioner had difficulty with her ankle. Petitioner was scheduled to undergo arthroscopic surgery on her left ankle on March 31, 2011. In conjunction with that surgery, Petitioner requested eight days of leave, which was all the annual leave she had. There was a conflict in the evidence as to what Petitioner told Respondent's management about the leave. The greater weight of the credible evidence established that Petitioner did not tell Respondent's management that she was scheduled to have surgery on her left ankle. The ankle surgery was postponed due to an insurance coverage issue. After finding another surgeon, Petitioner rescheduled the surgery. Respondent's work area has security cameras that monitor activities in the work area. Ms. Alonso reviewed the videos from those cameras after a vacuum cleaner was stolen from the work area in April 2011. During the course of that review, Ms. Alonso observed that Mr. Guillam was punching-in and punching-out two time cards. On April 8, 2011, Ms. Alonso confronted Petitioner and Mr. Guillam. Both admitted that Mr. Guillam had been punching Petitioner's time card. Ms. Alonso terminated the employment of Mr. Guillam and Petitioner on April 8, 2011, for violating the company's time card policy. There was no evidence that Ms. Alonso knew of Petitioner's ankle problems when she terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss with prejudice the Petition for Relief filed against Com-Jet Corporation by Gladys V. Fleites. DONE AND ENTERED this 3rd day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2013. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Anthony Joseph Perez, Esquire Law Office of Alfredo Garcia-Menocal, PA Suite 214 730 Northwest 107th Avenue Miami, Florida 33172 Paul F. Penichet, Esquire Paul F. Penichet, P.A. Suite 907, Biscayne Building 19 West Flagler Street Coral Gables, Florida 33130-4400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. 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 10th day of October, 2012.
