The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. At all times pertinent to these proceedings, Respondent was the director of the Calhoun County Public Health Department and the Liberty County Public Health Department. He split his time equally between the two health departments, working at each for two and a half days per week. Respondent saw approximately 16 patients per week in the family planning clinics in the two health departments. Patient S.M. S.M. was unsure of the date of her examination by Respondent. As conceded by Respondent's proposed finding of fact and corroborated by S.M.'s medical records, S.M. was seen by Respondent at the Blountstown or Calhoun County health department on October 11, 1989. Following a full physical examination by Respondent, inclusive of a pap smear, the nurse left the examination room with the pap smear specimen. Respondent and S.M. were left alone. S.M. was sitting on the examination table with the sheet wrapped around her. Respondent asked S.M. if she "watched dirty movies where people done it like dogs and ate one another." S.M. was discomfited and shocked by the question. Later, after leaving the examination room, she told a nurse at the facility that she did not like Respondent. S.M. felt that the nurse did not want S.M. to be heard by any other persons nearby. Patient E.B. Patient E.B. was seen by Respondent on August 17, 1990, at the Calhoun County Health Department. Following performance of a pap smear procedure, the nurse left the room with the specimen. Respondent touched E.B. between her legs and asked her if she liked sex, how many times a night did she have sex and how many orgasms she had. E.B. was "throwed for a loop" and gave no answer. She had not asked any questions of Respondent to precipitate such sexual inquiries. Patient M.H.A. On December 13, 1990, Patient M.H.A. was seen by Respondent for a gynecological examination. M.H.A. was 14 years of age at the time. Following departure of the nurse from the examining room with the pap smear specimen, Respondent was left alone with the patient. Respondent asked M.H.A. if her boyfriend had a big penis and if her boyfriend liked her because she had big breasts. Shocked and surprised at these questions, but unsure of their propriety since this was her first gynecological examination, M.H.A. gave Respondent no answer to his questions. Upon the nurse's return to the examination room a short time later, M.H.A. dressed and left the room. Patient R.H.P. On August 23, 1989, R.H.P. was examined by Respondent. Again, when the nurse left the examination room with the pap smear specimen leaving Respondent alone with the undressed patient, Respondent began asking questions. He asked the female patient if she ever had an orgasm. Being 14 years old, she replied that she didn't know what that was. Respondent asked R.H.P. if she went with her boyfriend for the size of his penis. R.H.P. said no. Respondent left the room, the nurse returned and R.H.P. dressed and left the facility. L.H. is the mother of Patient R.H.P and Patient M.H.A. At final hearing, L.H. related that M.H.A. told her the questions asked by Respondent during the child's examination. Patient R.H.P. confirmed to her mother that she had been asked similar questions. L.H.'s testimony is credible and corroborative of her daughters' testimony with regard to Respondent's conduct. Respondent Respondent is 74 years of age and has dedicated his professional career to the practice of medicine in the Blountstown area. As a matter of routine, Nurses Pratt and Johnson left Respondent alone with his female gynecological patients at the times in question in these proceedings when they left the examination room with specimens destined for laboratory analysis. While she never heard Respondent ask inappropriate questions, Nurse Pratt admits that some patients informed her that they were uncomfortable with examination by Respondent and never wanted to be examined by him again. Respondent's denial that he asked the questions about which his patients testified, is not credited. As established by the testimony of Elga White, M.D. and Harvey Gardy, M.D., experts testifying on behalf of Respondent and Petitioner, respectively, the questions posed by Respondent to the four patients which form the subject of this proceeding were inappropriate in the absence of initiation of such sexual inquiries by the patients.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 61F6-20.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in counts one and two of the Administrative Complaint and imposing discipline upon Respondent's license as follows: Imposition of an administrative fine of $5,000. Suspension of Respondent's license to practice medicine for a period of not less than six months with reinstatement upon satisfaction of conditions to be imposed by the Board of Medicine. Imposition of a probationary period of two years following reinstatement with probationary conditions to be determined by the Board of Medicine, inclusive of a condition that Respondent have a female attendant present at all times when he is with a disrobed female patient in an examining room. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of October, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-13. Adopted in substance, but not verbatim. Respondent's Proposed Findings. 1.-6. Adopted. 7.-16. Rejected, unnecessary. 17. Incorporated by reference. 18.-20. Rejected, unnecessary, with exception of last sentence of proposed finding #20, which is not supported by weight of the evidence. Pratt did receive complaints from patients about inappropriate questions. See, Tr.153. 21. Rejected, subordinate to HO findings. 22.-27 Rejected, unnecessary and subordinate to HO findings. 28.-29. Adopted. 30.-38. Rejected, subordinate to HO findings. 39. Adopted. 40.-47. Rejected, subordinate to HO findings. Adopted. Rejected, unnecessary. 50.-54. Rejected, subordinate to HO findings. 55.-64. Rejected, argumentative, credibility with regard to the comments made to R.H.P. clearly sides with R.H.P. Proposed findings are subordinate to HO findings. 65.-72. Rejected, subordinate to HO findings, argument. 73.-74. Rejected, unnecessary. 75.-77. Rejected, argument. 78.-82. Rejected, subordinate to HO findings. COPIES FURNISHED: Michael P. Spellman, Attorney at Law P. O. Box 1674 Tallahassee, FL 32302-1674 Francesca Plendl, Senior Attorney D B P R 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Marm Harris, Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue The issues presented for decision herein are whether or not the Respondent's physician license number ME 0034228 should be disciplined based on allegations set forth hereinafter in detail, that he violated various provisions of Section 458.331, Florida Statutes, as set forth in the consolidated administrative complaints filed under DOAH Case Numbers 83-1819 and 84-3052, as amended.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a licensed physician and has been issued license number ME 0034228 in the State of Florida. Between December 31, 1981, and at least December 1982, Respondent's license to practice medicine was placed on inactive status because of nonpayment of licensing fees. (Petitioner's Exhibit 10 and TR page 31) During the above-referenced time periods, Respondent performed or aided in the performance of medical abortions in Miami, Florida, including ones relating to Janet Lee Miller, Myrtha Baptiste, and Yvonne Bruno. (TR pages 326- 347 and 350- 377) On dates that Respondent performed or assisted in the performance of medical abortions previously mentioned, Respondent did not have an active license to practice medicine in the State of Florida. Myrtha Baptiste died following an abortion. In conjunction with criminal investigations of the death of Myrtha Bactiste, Respondent was interviewed by Nelson Andreu, a homicide detective with the City of Miami Police Department and George Sanchez, who was then an investigator with the State Attorney's Office. During the course of those interviews, Respondent advised Andreu and Sanchez that he had personally mailed in the items required for renewal of his license and that, as far as he knew, his license was valid. Megaly Lorenzo, a secretary in the Santa Rosa Medical Center where Respondent worked in 1981 and 1982, testified that Respondent gave Lorenzo his renewal fees in cash for 1982. Lorenzo did not renew Respondent's license because she forgot to. She informed Respondent of that omission during 1983. (TR pages 309-312) When Megaly Lorenzo renewed a license, she received a wallet-sized license from the Board of Medical Examiners which was then placed in the mirror in the offices at the Santa Rosa Medical Center. Between approximately January 15, 1981 and December 1982, Respondent worked as a physician at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. At times material hereto, Hipolito Barreiro was the owner and director of Women's Care Center. At all times material hereto, Hipolito Barreiro was not licensed to practice medicine in the State of Florida. (Petitioner's Exhibit 3 and testimony of Elaine Prater, TR page 268) Between approximately January 15, 1981, and December 1982, Barreiro was engaged in the practice of medicine at the Women's Care Center located at 5601 Biscayne Boulevard, Miami, Florida. During the relevant time period, Hipolito Barreiro performed various procedures which constitute the practice of medicine. As example, during February 1982, Barreiro inserted an intrauterine contraceptive device into Carmen Moses' cervix. In July 1982, Barreiro gave Patricia Humbert an injection and later performed an abortion on Humbert. In September 1982, Barreiro performed a gynecological examination on Etta Annette Brown to determine the status of her pregnancy. In December, 1982, Respondent performed a vaginal examination on Debra Plez confirming the fact that Plez was 6 1/2 months pregnant. Barreiro gave Plez a prescription, placed an IV in Plez's arm and finally performed an abortion on her (Plez). Elaine Prater, an employee at the Women's Care Center, observed Barreiro perform abortions on several occasions while Respondent was employed as a physician at the Women's Care Center. Respondent would sign patient charts as the physician performing the abortion when, in fact, the abortion was performed by Barreiro. These occurrences would usually take place in those instances where Respondent either arrived at work late or left work early. Additionally, it was noted that Respondent maintained a separate list of those patients on whom he performed an abortion and those patients for whom he had not operated or aborted. Ms. Prater acknowledged that Respondent was confronted on several occasions by her (Prater) and Trudy Ellis about his practice of signing charts for those patients whose abortions he had not performed. Finally, Respondent admitted to Roger Stefins that he knew that Barreiro was not licensed to practice medicine in Florida. Also, evidence reveals that Respondent confronted Barreiro on more than one occasion asking, "Haven't I told you not to examine girls before?" (TR page 80) As stated, Respondent maintained a separate list of patients on whom he had performed abortions for his own use. (See Petitioner's Exhibits 3 and 4) On several occasions, Respondent was presented "physician's reports of the termination," for abortions performed by Barreiro and was asked to sign the reports as a "physician" performing the termination. Respondent signed these reports even though he knew that the actual abortions had been performed by Barreiro. (TR pages 269-275) Respondent knew, or should have known, that the abortions had been performed by Barreiro as he was on duty, and because the patients would already be in the recovery room when he (Respondent) arrived for work. (TR page 278) During May 1982, Yvonne Bruno, a twenty-eight year old Haitian woman, went to the Women's Care Center for the purpose of having an abortion performed. Initially, Bruno went to the Women's Care Center on May 4, 1982, with $160. She was told to come back to the Center on the following Saturday, May 8, 1982, with $200. Bruno was not examined during that initial visit. On May 8, 1982, Ms. Bruno returned for the purpose of having an abortion. She only had $190. After arriving at the clinic, Bruno changed into a paper gown. Bruno signed several papers on May 8, 1982. One such paper was a sheet entitled, "Important Information Which Every Patient Should Know Concerning The Termination Of Pregnancy Procedure," which was a form maintained by the Women's Care Center. On the information sheet, Bruno's last menstrual period was listed as January 23, 1982. The appointment date for Bruno's abortion was listed on the information sheet as "5-9-82." In addition to the information sheet, Bruno also signed a form giving her consent for the Respondent to perform a pelvic examination. The consent form bore the date "5-8-82." Finally, Bruno signed a "Patient Information And Medical History" form which was dated May 9, 1982. (Petitioner's Exhibit 8) On May 8, 1982, Respondent performed an abortion on Bruno, using the dilation and aspiration method, followed by curretage. During the course of the abortion, Bruno's uterus was perforated. Respondent knew that Bruno's uterus was perforated almost immediately following perforation. (Petitioner's Exhibits 3, 4, 8, 9 and testimony of Pedro Ramos) On the physician's report of the termination, the term of Yvonne Bruno's pregnancy was listed as twelve (12) weeks. The form indicated that the termination was performed on May 9, 1982. Examination of the facts reveal that this was incorrect. The physician's report of the termination for Bruno indicated that the following complications occurred: "Complications: After aspirations with vacuum, the use of curette reveals perforation of uterus. We stop the operation and the patient is taken to the hospital." The physician's report of the termination for Bruno was signed by Respondent. (Petitioner's Exhibit 8) Ms. Bruno awoke after the abortion and was put in the recovery room. She was cold and experienced stomach pain more severe than she ever experienced before. The pain was persistent. Bruno informed the doctor who performed the abortion that she was having pains while she was still in the recovery room at the Women's Care Center. (TR pages 360-362) While Bruno was in the recovery room, the doctor who performed the abortion told Bruno that she has something in her uterus and that he (the doctor) had cleaned it out. He told Bruno that if she felt any more pain to call him, regardless of time. He also gave Bruno the telephone numbers for his house and the clinic. (TR pages 361, 362) Ms. Bruno remained at the Women's Care Center in the recovery room only long enough for a taxi to arrive. Immediately upon being taken to the recovery room, her friend, Amelia Ingrid Previle, called for a taxi. Bruno was in the recovery room less than an hour. While in the recovery room, Ms. Bruno's condition was not monitored. That is, no one took her blood pressure, respiration or pulse rates. (TR pages 363, 364 and 367-370) When the taxi arrived, Ms. Bruno left the Women's Care Center unable to walk because "her feet were so heavy." Therefore, the taxi driver and her friend, Previle, had to help Bruno to her friend's car. (TR pages 362, 363) It took Ms. Bruno approximately 15 minutes to get home from the Women's Care Center. When she arrived home, she felt intense pain which she credited to the fact that perhaps she had not eaten before she went to the Center. She drank tea and put some ice on her stomach. Bruno's pain intensified and her friend, Previle, started trying to contact Respondent in the late afternoon on May 8, 1982, by phone. Previle continued to try to contact the doctor until the early morning on May 9, 1982. When Previle finally contacted the doctor, Bruno was directed to come to the Women's Care Center. Bruno did so and, upon arrival at the Women's Care Center, she was given a pill. She was then taken to American Hospital in Miami, Florida. At approximately 6:30 a.m. on May 9, 1982, Hipolito Barreiro contacted Pedro M. Ramos, a physician specializing in gynecology and informed him that he had an abortion clinic. Barreiro also told Ramos that "they" thought that "they" had perforated a uterus during an abortion. Dr. Ramos agreed to meet the patient at the emergency room of American Hospital. (TR pages 326, 327) Once Dr. Ramos arrived at American Hospital, he attempted to obtain a patient history from Bruno; however, this was difficult because of Bruno's limited ability to speak English. With the help of Barreiro and Previle, Dr. Ramos was able to obtain some information. However, on the patient history, Dr. Ramos made the notation that "unable to verify (past illness) properly. Pt. speaks little english." (TR pages 329, 350-377 and Petitioner's Exhibit 9) When Dr. Ramos arrived at American Hospital, he was given the following patient history for Bruno: "25-year old black female complaining of abdominal pain of 4-6 hours onset with fever (? chills) with brownish discharge from vagina after an abortion performed on May, 1983 . . ." (Testimony of Pedro Ramos, M.D. and Petitioner's Exhibit 9) Based on the available information, Dr. Ramos diagnosed Bruno as suffering from a perforated uterus and possibly peritonitis. After performing the necessary laboratory tests, Bruno was taken to surgery for an exploratory laparotomy which revealed a perforated uterus. The uterus was perforated at the fundus on the right side. The perforation was more than 4 centimeters long. The exploratory laparotomy also revealed fetal parts in Bruno's abdomen. Dr. Ramos found at least the head and spine remaining in Bruno's abdomen. (TR page 329 and Petitioner's Exhibit 9) After the exploratory laparotomy, Dr. Ramos also determined that, in addition to the items noted above, an inflammation process had begun (peritonitis), affecting Bruno's ovaries. Dr. Ramos removed the fetal parts from Bruno's body, irrigated the area and performed a complete hysterectomy, removing both the ovaries and uterus which were beyond repair. The head of the fetus removed from Bruno's uterus measured four centimeters by two centimeters. Therefore, Dr. Ramos opined that the fetus would have been approximately 17 to 18 weeks of age. At this stage of development, fetal parts are very hard. When suction is applied to the uterus, the solid parts are moved around. The fetal parts are, at this stage, too large to go through the suction tube and remain in the uterus after suction. Following the use of suction, curretage follows. The manipulation of the curette in the uterus will then result in movement of the fetal parts. Usually, it is the spine or an arm which actually causes the perforation. By manipulating the fetal parts, the physician can cause the fetal part to perforate the uterine wall which is very soft at this stage. Bleeding can be ascertained through a monitoring of the patient's vital signs and by observation of the patient's general appearance. (TR page 224) In determining how long a patient should be monitored after an abortion has been performed, it is important to know the stage of pregnancy. With an early pregnancy, i.e., 10 - 12 weeks, the patient may be observed for a shorter period of time. Where there are no complications, the patient should be observed for between 1/2 to 1 hour. (TR pages 222 - 225) With an advanced pregnancy, i.e., one in the second trimester, the patient should be monitored for two hours after the abortion is completed. The patient might be monitored for a longer period of time if there are difficulties after the abortion is completed. Monitoring should include checking vital signs such as blood pressure, pulse and respiration rates and checking the patient for hemorrhaging and infection. Usually, with a perforated uterus, the patient experiences abdominal pain immediately following the abortion. A doctor who recognizes that he has perforated a uterus during an abortion should transfer the patient to the hospital for observation. If a patient complains of severe abdominal pain immediately upon completion of an abortion, the doctor should observe the patient until the pain disappears or until the cause of the pain is determined and dealt with. In this regard, Respondent admitted that he perforated Bruno's uterus during the performance of an abortion. (Petitioner's Exhibit 3, pages 20-23) Noteworthy is the fact that Respondent, when questioned by Investigator Stefins, an Assistant State Attorney, stated that punctures of the uterine wall should never be treated in the clinic and that on the occasions when he punctured a uterus, he would take that patient to the hospital. Perforation of a uterus is not, in and of itself, malpractice or negligence. It is below minimal standards of care, skill and treatment for a reasonably prudent physician to fail to carefully monitor a patient, by checking blood pressure, pulse and respiration rates, as well as checking the patient's general appearance after an abortion performed during the second trimester, for a sufficient period of time to determine the existence of complications. If the patient complains of persistent abdominal pain, it is below minimally acceptable standards of care, skill and treatment, as recognized by reasonably similar prudent physicians, under such conditions as are described above to release the patient without first carefully monitoring the patient until the pain disappears or until cause of the pain can be determined and dealt with. (Testimony of Doctors Ghali and McLeod)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's physician license number ME 0034228 shall be suspended for a period of two years and a civil penalty of $2000 shall be imposed. RECOMMENDED this 12th day of July, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985.
Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The issue presented is whether Respondent is guilty of the allegations set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0020248. Respondent is a board- certified pathologist who completed a residency in obstetrics and gynecology in Venezuela and practiced in the field of obstetrics and gynecology in South America for almost five years before coming to the United States. On April 20, 1991, patient J. B., a 27-year-old female, came to A Woman's Care, where Respondent was then employed, for the purpose of terminating her pregnancy. She indicated on a patient history form that the date of her last menstrual period was January 30, 199l. According to the medical records from A Woman's Care, she did not express any uncertainty or equivocation with respect to that date. One method of determining gestational age is based on calculating from the last menstrual period, assuming that the patient's history is reasonably reliable. With a history of a last menstrual period on January 30, 1991, the gestational age of the fetus on April 20, 1991, based upon a calculation by dates, was seven weeks. After obtaining a history from the patient with respect to the date of the last menstrual period, the physician needs to perform a bi-manual examination of the patient in order to assess the size of the uterus and to confirm the history given by the patient. Although the bi-manual examination is a reasonably reliable method of assessing the stage of pregnancy, it is a subjective examination and can sometimes be difficult. There is an acknowledged inaccuracy with respect to that clinical evaluation. The most accurate method of determining the gestational age of a fetus is through ultrasound examination. An ultrasound is performed when there is uncertainty as to the gestational age, such as when the patient does not know the date of her last menstrual period or when there is inconsistency between the patient's disclosed date and the physician's bi-manual examination. There is a general correlation between the size of the uterus in centimeters on bi-manual examination and gestational age in weeks. It is important to determine the gestational age of the fetus before performing a termination of pregnancy because the gestational age is the determining factor in deciding the size of the instruments to be used in the procedure and the amount of tissue to be removed. Respondent performed a bi-manual examination of the patient and recorded that his examination revealed a uterus consistent with an approximately seven-week gestation. Because the gestational age by dates and the results of the bi-manual examination both indicated a seven-week pregnancy and were consistent, Respondent did not order an ultrasound examination for the purpose of determining gestational age. On April 20, 1991, Respondent performed a termination of pregnancy on patient J. B. after the patient was informed of the possible risks of the procedure and after the patient signed a Patient Informed Consent Form. That Form detailed the possible risks, including infection and incomplete termination. Based upon the patient's history and the bi-manual examination and his conclusion that the patient was approximately seven-weeks pregnant, Respondent used an 8 mm Vacurette to terminate patient J. B.'s pregnancy. An 8 mm Vacurette is an appropriately-sized device to terminate a seven-week pregnancy. After completing the procedure, Respondent submitted the tissue obtained to a pathologist who determined that three grams of tissue had been submitted, consisting of products of conception and chorionic villi. The pathology report revealed what would reasonably be expected as a result of the termination of a seven-week pregnancy. After the procedure, the patient was given written instructions for her care and was discharged from A Woman's Care at 10:35 a.m. On April 21, 1991, at approximately 6:30 a.m., the patient's grandmother telephoned A Woman's Care to advise that the patient was complaining of dizziness and pain. The patient was advised to take Tylenol and call back if she continued to feel sick. At approximately 7:30 a.m., the patient's grandmother called again to advise that the patient was going to go to the hospital. On April 21, 1991, at 1:25 p.m., patient J. B. arrived at the Emergency Room at North Shore Medical Center with a temperature of 104.3 degrees, an elevated white blood cell count, chills, lower abdominal pain, and spotting. The patient was seen during her North Shore admission by Dr. Ramon Hechavarria, a physician certified in obstetrics and gynecology, and by Dr. Tomas Lopez, a general surgeon. Dr. Lopez noted in his consultation report that a pelvic bi-manual examination that he performed on April 21 showed an enlarged uterus corresponding to approximately 11-12 weeks' gestation. An ultrasound examination done on April 21 revealed a uterus measuring 11.0 x 7.8 x 7.8 centimeters and a viable intra- uterine pregnancy which was estimated by the radiologist to be 13-14 weeks' gestational age. On April 22, the patient underwent termination of her pregnancy by Dr. Hechavarria who noted in his operative report that both the pelvic ultrasound and a bi-manual examination revealed an intra-uterine pregnancy of about 11 weeks with a live fetus. An ultrasound performed intra-operatively confirmed that all fetal tissue had been removed and that there were no perforations. Infection and an incomplete termination are two of the recognized complications resulting from terminations of pregnancy. The fact that a patient suffers an infection or an incomplete termination does not, per se, indicate any negligence on the part of the physician. Respondent did not fall below the recognized standard of care by failing to perform an ultrasound on patient J. B. His examination revealed a gestational age consistent with the date identified by the patient as the date of her last menstrual period. Accordingly, there was no need to perform an ultrasound. Respondent did not fall below the recognized standard of care by misjudging the gestational age of the fetus. It is not uncommon for a physician to misjudge the length of gestation by several weeks. For example, Drs. Lopez and Hechavarria concluded the fetus had a gestational age of 11 weeks; yet, the ultrasound reported 13-14 weeks. Respondent did not fall below the recognized standard of care by using the wrong size of equipment to perform the termination of pregnancy. He used the proper equipment consistent with his judgment as to the length of gestation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Respondent not guilty of the allegations and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 25th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathon P. Lynn, Esquire Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II 9130 South Dadeland Boulevard Miami, Florida 33156 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Findings Of Fact Stipulated facts 2/ The Respondent is a licensed physician in the State of Florida and has been licensed in Florida at all times material herein. The Respondent is Board Certified in family practice. The patient B. M., a female born on May 18, 1934, with a history of hypertension, diabetes, and obesity, presented to the Respondent on multiple occasions between August of 1979 and November of 1990. On September 29, 1979, when she was forty-five years old, patient B. M. notified the Respondent that her periods were spreading out and that she was getting hot flashes. On February 18, 1982, patient B. M. indicated that she was having irregular periods every couple of months. The Respondent's medical records indicate that he did not see or treat the patient B. M. between October 1, 1984, and July 3, 1987. On July 3, 1987, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding for the past three (3) months. The patient indicated the bleeding had stopped approximately three weeks earlier. The Respondent diagnosed patient B. M. with vaginitis, and prescribed her medication for vaginitis, based on the patient's complaints of vaginal discharge. Respondent did not perform a pelvic examination on that day to make that diagnosis. Patient B. M. returned the following week for a pelvic examination. The Respondent did not document the medical history of the patient B. M. during the preceding three years, although she had a history of high blood pressure and diabetes, both conditions that require periodic monitoring and prescription medication. The Respondent also did not document any pertinent information relating to the patient's gynecological history, including, but not limited to, the dates of the patient's last period, how often her periods were occurring, and how much she was bleeding, despite her complaints of excessive bleeding. On August 7, 1987, after several other visits, the patient B. M. returned for an examination. A pelvic examination revealed a vaginal laceration that was bleeding. On January 18, 1988, patient B. M. presented to the Respondent with complaints of irregular bleeding for the prior month. The Respondent suggested a dilation and curettage (scraping of the uterine walls) if patient B. M.'s bleeding continued. On December 21, 1989, patient B. M. presented to the Respondent with complaints of excessive vaginal bleeding with clots since the previous night. The Respondent indicated that the patient had her regular period the previous week, and was using condoms. The Respondent performed a pelvic examination which revealed blood clots, and diagnosed patient B. M. with dysfunctional uterine bleeding and administered progesterone to patient B. M. The Respondent did not document any additional information concerning the patient's menstrual activity, such as how often she had periods, what was meant by uncontrollable vaginal bleeding, where the bleeding was coming from, or why she was using condoms. The patient B. M. continued to complain of occasional bleeding after December 21, 1989, and on January 15, 1990, the Respondent referred the patient B. M. to a gynecologist. On February 5, 1990, the patient B. M. presented to a gynecologist, who took cervical biopsies and subsequently performed a dilation and curettage on the patient B. M. on or about February 23, 1990. The patient was subsequently initially diagnosed with grade two endometrial cancer, and after biopsy was diagnosed with grade three endometrial cancer and was referred to another gynecologist at the University of Miami. 3/ On April 5, 1990, the patient B. M. underwent a total hysterectomy. The patient B. M. was then diagnosed with Stage III-C endometrial carcinoma and underwent intravenous Adriamycin chemotherapy. On December 25, 1990, the patient B. M. expired. Facts based on evidence at hearing At all times material to this case, the subject patient 4/ weighed approximately three hundred pounds. Periods spreading out and hot flashes are signs that a woman may be beginning menopause. The average length of time between the beginning of menopausal symptoms and a cessation of menstruation is six months to one year. Endometrial cancer is cancer of the uterus. It is the most common gynecological cancer in women. Endometrial cancer occurs most often in women who are post-menopausal. About 20 to 25 percent of women are diagnosed with endometrial cancer before menopause. Most patients are diagnosed with endometrial cancer after the age of 50. When diagnosed early, patients with endometrial cancer have a very high survival rate. When diagnosed late, patients with endometrial cancer have a very low survival rate. The subject patient had several of the risk factors associated with endometrial cancer. The first symptom in most cases of endometrial cancer is abnormal bleeding. Any woman with post-menopausal abnormal bleeding should be checked for endometrial cancer. The subject patient was hospitalized in 1982. During that hospitalization she was evaluated by a gynecologist who determined that there was no evidence of abnormal or irregular gynecological problems at that time. After February 18, 1982, through October 1, 1984, there are no references in the Respondent's medical records to the subject patient's menstrual history, and no indication as to whether the patient had regular or irregular menstrual periods during that period of time. The subject patient was not seen by the Respondent on any occasion between October 1, 1984, and July 3, 1987. 5/ The subject patient returned to the Respondent's office on July 3, 1987. On the occasion of that visit she gave a history to the Respondent's office staff which is recorded in the Respondent's medical records as "excessive bleeding vaginal for 3 mos. Stopped 6/13." The Respondent's records for July 3, 1987, do not contain any additional details regarding the nature of the excessive bleeding. The Respondent's medical records for the July 3, 1987, office visit also indicate that at that time the patient had a vaginal infection with a discharge. This information was obtained from the patient. On that day the Respondent did not examine the patient to confirm the condition described by the patient. The Respondent diagnosed the patient as having vaginitis and prescribed Sultrin cream and Betadine douche for the vaginitis. The medical records for the July 3, 1987, office visit note that the patient had high blood pressure. Although the records, standing alone, do not clearly show that any treatment was undertaken on that day for the patient's high blood pressure, during the course of the July 3, 1987, visit, the Respondent prescribed medication for the patient's high blood pressure, as well as syringes for her diabetes. Those prescriptions were recorded in the patient's chart on the front cover. Because the subject patient had returned for a single office visit on July 3, 1987, after an absence of almost three years, the Respondent determined at that time that he needed to do a full physical examination on her, as well as a pelvic exam. Although the Respondent did not perform either examination at the July 3, 1987, office visit, he made plans to do both shortly thereafter. The subject patient returned ten days later, on July 13, 1987, at which time the Respondent performed a complete physical examination of the patient. No pelvic examination was performed that day, because the Respondent was having her period. The Respondent asked the patient to return one week later for a pelvic examination. The subject patient returned on July 20, 1987, at which time a pelvic examination was performed. On that day there was no evidence of any irregular or unusual bleeding. The patient did have a vaginal infection that day. The vaginal infection was treated appropriately by the Respondent. In view of the vaginal infection, the patient was advised to return to the office one week later, at which time she would be examined again. The subject patient returned to the Respondent's office on August 7, 1987, for a follow-up pelvic examination, at which time the Respondent identified a small superficial laceration in the patient's vagina. The laceration was causing some slight bleeding. The Respondent noted that there was no bleeding from the cervical os, which indicated that the small laceration was the sole source of the patient's bleeding that day. As an additional follow-up, the Respondent ordered a sonogram. The sonogram was ordered in part because, due to the patient's obesity, the Respondent was unable to palpate her internal organs. The Respondent did not document any details concerning the vaginal laceration, such as the size of the laceration, the amount the laceration was bleeding, or the precise location of the laceration, because it was a very small laceration with very slight bleeding which was of very little medical significance. The Respondent did not refer the patient to a gynecologist after learning the results of the sonogram he ordered on August 7, 1987. The Respondent concluded that the 1987 sonogram results were not significantly different from the 1982 sonogram results. Such conclusion was reasonable under the circumstances. Accordingly, the 1987 sonogram results did not suggest any need for further investigation. The subject patient returned to the Respondent's office on August 24, 1987, at which time she had no complaints of any type of vaginal bleeding. She was being seen in order to follow up on her other complaints, notably her diabetes and her high blood pressure. The Respondent assumed that the vaginal laceration had healed and did not conduct a pelvic examination of the patient during that visit. After August 24, 1987, and before January 18, 1988, the Respondent saw and treated the subject patient once a month on four more occasions. The medical records for those four office visits do not mention the patient's menstrual history or whether she was bleeding on any of those occasions. During the four monthly visits between August of 1987 and January of 1988, the subject patient did not complain of any episodes of irregular vaginal bleeding. On January 18, 1988, the subject patient returned to the Respondent's office with complaints of irregular vaginal bleeding since having been the victim of a mugging during the previous month. The Respondent did not record any detailed information about the bleeding, such as her current menstrual condition, how much she was bleeding, or how often she was bleeding. The Respondent concluded that the bleeding was probably due to the patient's anxiety about the recent mugging incident. Nevertheless, he wanted to follow up on the irregular bleeding if it did not resolve on its own. To that end he discussed the matter with the patient and told her that if the irregular bleeding did not get better, she should come back and he would do a D & C. The Respondent noted in his record for that visit: "May need D & C if bleeding continues." In view of the patient's intelligence, the Respondent fully (and reasonably) expected she would tell him if she had any further irregular bleeding. The procedure known as D & C, or dilation and curretage, is a procedure wherein a physician obtains a sample of the lining of the uterus to evaluate it for possible abnormalities. The D & C procedure is commonly used to diagnose, or to rule out, endometrial cancer. Following the office visit on January 18, 1988, the subject patient presented to the Respondent's office on three other visits during each of which she did not have any complaints of irregular bleeding. The subject patient did not have any further gynecological complaints until December 21, 1989. On that day she returned to the Respondent's office with complaints of uncontrollable vaginal bleeding since 7:30 p. m. of the previous evening. During the course of the December 21, 1989, office visit, the subject patient told the Respondent that she had had her last regular menstrual period the week before. She also told him she was using condoms. During the course of the December 21, 1989, office visit the Respondent performed a pelvic examination of the patient and made a provisional or working diagnosis of dysfunctional uterine bleeding. He administered an injection of progesterone and instructed the patient to return in three days. He also instructed the patient to have another pelvic sonogram performed. Dysfunctional uterine bleeding is abnormal uterine bleeding not related to or caused by an organic problem such as cancer, polyps, fibroids, or infections. It is usually caused by an hormonal imbalance. In the case of a woman who is not post- menopausal and who presents with complaints of irregular vaginal bleeding, one of the differential diagnoses can be dysfunctional uterine bleeding. In such a case it is appropriate to administer progesterone prior to embarking on additional studies. In such a case the administration of progesterone is useful for two reasons: (1) if the progesterone is successful in stopping the irregular bleeding its success tends to confirm the differential diagnosis of dysfunctional uterine bleeding, and (2) if the progesterone is unsuccessful in stopping the irregular bleeding it tends to rule out the diagnosis of dysfunctional uterine bleeding and confirm the need for further investigation. Under the circumstances that existed on December 21, 1989, it was reasonable and appropriate for the Respondent to administer progesterone on the basis of a provisional or working diagnosis of dysfunctional uterine bleeding, because if the treatment was successful it would tend to confirm the provisional or working diagnosis and it the treatment was not successful it would rule out the provisional or working diagnosis. 6/ The fact that dysfunctional uterine bleeding was only a provisional or working diagnosis is illustrated by the fact that the Respondent at the same time ordered a sonogram in order to investigate other possible causes of the abnormal bleeding. A verbal report of the results of the sonogram ordered on December 21, 1989, was given to the Respondent's office by telephone on December 26, 1989. 7/ A written report of the results was provided shortly thereafter. The report of the sonogram ordered on December 21, 1989, indicated that the subject patient had an enlarged uterus measuring 18.8 x 9.3 x 10.8 centimeters. The 1989 sonogram report revealed that the patient's uterus was substantially larger than it had been at the time of the 1987 sonogram. The report of the December 21, 1989, sonogram included a recommendation for follow up examination of the uterus and the endometrial canal. The subject patient returned to the Respondent's office on December 26, 1989, at which time she told the Respondent that the bleeding had stopped. He asked her to return again in two weeks. When she returned twenty days later on January 15, 1990, she had started to again have occasional episodes of bleeding and spotting. The Respondent thereupon referred the patient for a gynecological consult. The subject patient was seen by a gynecologist, Dr. William Shure, on February 5, 1990. The patient provided Dr. Shure with a history that her last menstrual period had been on December 19, 1989. This last menstrual period history is the same history that was recorded by the Respondent on December 21, 1989. On February 5, 1990, Dr. Shure took cervical biopsies from the subject patient, and subsequently performed a D & C on the patient on February 23, 1990. The patient was then diagnosed with Stage II-B endometrial cancer. Following a total hysterectomy on April 5, 1990, the patient was diagnosed with Stage III-C endometrial cancer. Stage II-B endometrial cancer is cancer of the uterus with extension into the cervix. Stage III-C endometrial cancer is an advanced stage of cancer of the uterus which extends into the cervix and has metastasis to pelvic lymph nodes. The patient underwent chemotherapy for the cancer. The chemotherapy was unsuccessful and the patient expired on December 25, 1990. At all times material to this case the Respondent used a record- keeping methodology in his medical practice known as the SOAP method. This is an appropriate methodology for record- keeping in a medical practice. The Respondent's records regarding the subject patient demonstrate that he kept a running list of all medications prescribed for the patient. The Respondent's records regarding his care and treatment of the subject patient were sufficient to justify his course of treatment of the patient. 8/ The care, skill, and treatment applied by the Respondent in the treatment of the subject patient from July of 1987 through January of 1990 (the only time period at issue here) was reasonable under the circumstances and did not depart from the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's treatment of the subject patient did not constitute gross or repeated malpractice. 9/ The Respondent has not been the subject of any prior disciplinary proceedings.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges in all three counts of the Amended Administrative Complaint. DONE AND ENTERED this 17th day of May 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 17th day of May 1996.
The Issue This case concerns an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Jose Antonio Benavides, It accuses the Respondent of violating Subsection 458.331(1)(t) , Florida Statutes, related to gross or repeated acts of malpractice or the failure to practice medicine in keeping with the level of care, skill and treatment Prescribed by that provision. The matter specifically relates to Dr. Benavides' treatment of the patient Beatrice Fisher.
Findings Of Fact By Administrative Complaint dated April 10, 1981, State of Florida, Department of Professional Regulation, Board of Medical Examiners, Petitioner seeks to revoke, suspend otherwise discipline Jose A. Benavides, medical doctor. As grounds, it is alleged that the Respondent inappropriately failed to diagnose carcinoma in a patient in violation of Section 458.331(1)(t) , Florida Statutes (1979) At the hearing the Petitioner presented five (5) witnesses. Further, the Petitioner introduced five (5) exhibits which were received into evidence. The Respondent testified in his own behalf and was permitted to introduce the testimony of his expert witnesses in the form of deposition. The deposition of Dr. William Espinoza was taken on August 19, 1981. The Respondent's other expert witnesses, Dr. George Dabiglus and Dr. Bienendo Benach were unavailable for their scheduled depositions on August 19, 1981. At that time the parties contacted the Hearing Officer and the Respondent requested that the matter be continued so that the depositions of Dr. Benach and Dr. Dabiglus could be taken at a later date. Counsel for the Petitioner noted her objection to a continuance. In light of the fact that these witnesses were not subpoenaed and the prejudice to the Petitioner resulting from unwarranted delay in these proceedings, the Respondent's request for a continuance was denied. The petitioner, however, stipulated that the testimony of Dr. Benach and Dr. Dabiglus would be substantially the same as that of Dr. Espinoza. Material Facts Jose A. Benavides, .D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation as a medical doctor and was so licensed at all times pertinent to this case. The Respondent has engaged in family practice, obstetrics and gynecology since becoming licensed in Florida in 1975. In addition, Respondent has received special training in obstetrics, gynecology, and surgery. On August 13, 1979, the Respondent saw the patient Beatrice Fisher for the first time. Ms. Fisher had been the patient of Dr. T. Brandwein, whose practice Dr. Benavides assumed. On the occasion of the first visit, Ms. Fisher complained that she had blood in her urine and in the face of this complaint, the Respondent had an urinalysis performed, the results of which may be found in the Petitioner's Exhibit No. 1, admitted into evidence. Those results, by their general nature, were negative. At the time of this visit, no other procedures were undertaken by the Respondent to determine if the bleeding had its origin as a vaginal or rectal discharge. (Ms. Fisher was a woman in her seventies whose menopausal cycle had ceased a number of years before.) On this first visit, the patient was also concerned about not being able to sleep, and complained of back pain and swelling in her right hand. At that point the Respondent diagnosed the case as a matter of deep depression and continued the medication that had been prescribed by the prior physician. Dr. Benavides saw the patient again on August 20, 1979, and the normal urinalysis was reported. On this occasion the patient described a problem with pain when she walked or stood up. In response to this, Dr. Benavides continued the previously prescribed medication. (The medication prescribed on the August 13 and 30, 1979, visits may be found in Petitioner's Exhibit No. 2.) The patient Fisher, returned to the office of Dr. Benavides on September 4, 1979, and had as complaint, the fact that she felt tired and was concerned about getting enough rest. She was particularly concerned about her inability to sleep. At this time, Dr. Benavides prescribed medication for depression as set forth in Petitioner's Exhibit No. 2. The next office visit by Ms. Fisher to Dr. Benavides occurred on September 28, 1979. At that time, Ms. Fisher complained about vaginal bleeding. Dr. Benavides conducted a pelvic examination which revealed a bloody vagina and odorous discharge from the vaginal region. The pelvic examination in its gross terms found the vagina to be acceptable and the uterus to be small and hard. According to the patient, this discharge had been occurring for approximately two weeks. Dr. Benavides also did a pap smear. No other examination or tests were conducted at that time to ascertain the agent responsible for the bleeding. Dr. Benavides did note in the file the probability of a malignancy and recommended that the patient return to his office in a month. Although there was no discussion about malignancy with the patient, the patient told Dr. Benavides about problems with cancer in her family and the fact that her son, mother, aunt and brother had died from this disease. On this visit, Dr. Benavides found that the patient's state of depression had improved. On October 2, 1979, Ms. Fisher called Dr. Benavides to get the results of the pap smear test and she was told that he might have to conduct another pap smear test, notwithstanding negative results from the test. The next office visit with the patient occurred on October 15, 1979. At that time, the patient was still experiencing a discharge in the way of staining, or spotting. Again Dr. Benavides noted his concern about possible malignancy. He also expressed concern about infection in the vaginal area. He described this spotting as chocolate in color, and odorous. A vaginal culture was taken and the results of that culture were normal, with the exception of a moderate amount of proteus mirabilis for which he prescribed tetracycline, an antibiotic. The prescription was dated the date of the visit. The results of the vaginal culture were made known on October 18, 1979, and may be found in Petitioner's Exhibit No. 2. Dr. Benavides did not discuss the possible malignancy with the patient Fisher on the October 15, 1979, visit. Dr. Benavides was of the persuasion that the vaginal culture was indicated to rule out the malignancy; however, the testimony of experts in the field of medicine offered in the course of the hearing, shows that such a test would not rule out a malignancy in the uterus. Ms. Fisher at this visit continued to express her concern that her condition might be caused by cancer. On October 18, 1979, the patient Fisher called the Respondent and was still complaining of staining, a bloody discharge. Medication was prescribed as set forth in the Petitioner's Exhibit No. 2 and the patient was told that the results of the laboratory test performed from the vaginal culture were negative. The records of the Respondent indicate a further prescription was written for the patient on November 6, 1979, and this followed a call on that date by the patient Fisher to the Respondent in which she continued to complain about staining. On December 7, 1979, the patient Fisher returned to the doctor's office and complained of the problem with her knee and certain medications were prescribed. No further discussion was held on the subject of vaginal bleeding and no further tests were performed to ascertain the cause of that bleeding. On January 23, 1980, Ms. Fisher went to see her Opthalmologist, Dr. Robert Goldwyn. Dr. Goldwyn mentioned that he felt Ms. Fisher did not look well and there ensued discussion about the reason for her appearance, in which she described her problem with vaginal bleeding. Dr. Goldwyn immediately referred the patient to Dr. Arthur Rudolph, a specialist in obstetrics and gynecology, who was in Dr. Goldwyn's building. On January 23, 1980, Dr. Rudolph saw Ms. Fisher. Dr. Rudolph is a physician admitted to practice in the State of Florida, who has twenty-five (25) years experience. After examining the patient Fisher, he indicated to her that she needed to be hospitalized to have dilatation and curettage performed. He also performed a pap smear and found it to be Class III, that is suspicious carcinoma. On January 31, 1980, the patient Fisher was admitted to Baptist Hospital of Miami. A dilatation and curettage examination was performed revealing adenocarcinoma of the endometrium with superficial invasion. There followed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Following the operation, Dr. Rudolph finds the patient's outlook to be good. Nevertheless, it is not known whether or not the problem with carcinoma is concluded. The findings of Dr. Rudolph's proceedings may be found in Petitioner's Exhibit No. 3, admitted into evidence. Further, testimony by Dr. Rudolph establishes that there is a presumption of possible malignancy any time bleeding is observed in a post- menopausal patient whose last menstrual cycle occurred one year or more before the event of bleeding. In this instance, Ms. Fisher's last menstrual cycle had occurred some twenty (20) years before her complaints with bleeding. To determine if there is carcinoma in the uterus, Dr. Rudolph correctly indicates that suction curettage or dilatation and curettage are proper methods of detection. A pap smear would be a method of detection of carcinoma in the cervix, but not in the endometrium, as established by the expert, Dr. Rudolph. Assuming that September 28, 1979, was the first complaint of this bleeding, it was inappropriate for a month to transpire before scheduling the next appointment, as identified by Dr. Rudolph. The pap smear followed by suction curettage or dilatation and curettage should occur as soon as possible from detection of bleeding, in that there is a correlation between treatment success and time before treatment. Dr. Rudolph's testimony established that the vaginal culture was not an adequate method for determining cancer unless that cancer happened to be in the wall of the vagina. Dr. Rudolph's examination of the medicines prescribed for the patient Fisher by the Respondent, with the exception of polymax with which Dr. Rudolph was not familiar, established that those other medicines were not valid in the detection of carcinoma. Dr. Rudolph correctly asserts that the Respondent's care and treatment of the patient Fisher, especially as related to diagnostic tests and procedures, was inconsistent with the care which is recognized by a reasonably prudent physician in the Dade County, Florida, community in which Dr. Rudolph and Dr. Benavides practice medicine, either for specialists in obstetrics and gynecology or family practitioners. Dr. Edwin Crane, a specialist in obstetrics and gynecology, licensed in the State of Florida, also gave testimony. Dr. Crane correctly stated in his testimony that complaints of vaginal bleeding in post-menopausal patients indicates possible carcinoma. He also identified the fact that a pap smear will not detect bleeding from the uterus and identified the proper method for establishing the cause of bleeding from the uterus to be the gravilee jet wash; endometrial bio-suction curettage and that if these methods proved negative a dilatation and curettage (scraping of the lining of the uterus) . The pap smear is not acceptable because if the cancer is high in the uterus, the smear is only positive 15 percent of the time. This fact was established through the witness Crane. Assuming September 28, 1979, as being the first date of complaint of spotting, Dr. Crane felt that one or two weeks delay in any further consideration of this case might be acceptable, but in this instance Dr. Benavides intended to put off further procedures for a period of one month and when the patient returned on October 15, 1979, still did not undertake methods for identitying carcinoma in the uterus. Dr. Crane rightly indicates that speed in detection and treatment are vital in promoting a likelihood of cure. An analysis of the drugs which Dr. Benavides, prescribed to the patient Fisher, as conducted by Dr. Crane, reveals those drugs were not valid in the detection or treatment of carcinoma. Dr. Crane was of the persuasion that Dr. Benavides' treatment of the patient Fisher is not what would be expected from a reasonably prudent medical practitioner in the State of Florida, and that at a minimum, Dr. Benavides should have recommended procedures to be followed in detecting the reason for the bleeding and informed the patient that there was a possible malignancy, which was not done on this occasion. Dr. William T. Mixson, licensed in the State of Florida, and an expert in obstetrics and gynecology, gave testimony. Dr. Mixson testified that if confronted with vaginal bleeding, the physician should take the history and describe the amount, color, odor of the blood, how long it had been present, any hormonal therapy and any trauma associated with this discharge. A physician, according to Dr. Mixson, when confronted with this condition, should examine the abdomen, pelvis (speculum) and rectum and should take a pap smear if there is no excessive bleeding. According to Dr. Mixson, post-menopausal bleeding is a sign of possible malignancy. The sources of that bleeding, per Dr. Mixson, would be the vagina, cervix or uterus, and the explanation for the bleeding in order of occurrence would be polyps, atropic vaginitus and carcinoma. In addition to a pap smear, an office biopsy from the endometrium or dilatation and curettage would have been an appropriate diagnostic method and to wait one month to conduct these proceedings was inappropriate. In Dr. Mixson's opinion vaginal cultures are not designed to detect carcinoma, but are more appropriate for identifying infections and the medications prescribed by Dr. Benavides for the benefit of the patient Fisher were not designed to diagnose or treat carcinoma. According to Dr. Mixson, Dr. Benavides' actions were not in keeping with those of a reasonably prudent physician either in the field of obstetrics and gynecology, or as a general practitioner. Dr. Mixson's perceptions as described are accepted. The testimony by Dr. William Espinoza does not vary in a significant way on the subject of the proper care and treatment of a patient such as Ms. Fisher when contrasted with that of Drs. Crane, Rudolph and Mixson. If the facts were as established in this Recommended Order, Dr. Espinoza would not find Dr. Benavides' performance to be in keeping with that of a reasonably prudent practitioner licensed in the State of Florida. The difference in Dr. Espinoza's perception comes about in view of the fact that he would believe the Respondent's explanation of having discussed and advised Ms. Fisher of a possible malignancy on several occasions and attempting to have Ms. Fisher undergo dilatation and curettage. This explanation by the Respondent is not accepted. Therefore, the experts offered in the course of the hearing are in accord on the standard for a reasonably prudent practitioner confronted with a case similar to that of Ms. Fisher.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty therefor.
Findings Of Fact Parties and Investigation Leading to Issuance of the Amended Complaint The Department is the state agency responsible for regulating the practice of medicine pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep medicine specialist licensed (ME 114611) in Florida. Respondent completed a neurology residency in 2013 and a sleep medicine fellowship in 2014. He practiced at the VA from 2014 until 2020, initially at the Lake Baldwin facility and then at the Lake Nona facility. From 2020 until early 2021, Respondent practiced at Orlando Health. Other than the allegations herein, the Department has never sought to discipline Respondent. The Department seeks to revoke Respondent’s license based on allegations that he engaged in sexual misconduct during office visits with three female patients—S.R., M.H., and M.V.S. The parties stipulated that the factual allegations, if proven by clear and convincing evidence, constitute sexual misconduct under Florida law. On or around December 6, 2020, M.V.S. reported to both the LMPD and the Department that Respondent acted inappropriately during an office visit on November 30, 2020. The Department investigated further, interviewed M.V.S. and Respondent, and obtained medical records from Orlando Health. On February 17, 2021, the Department issued an Order of Emergency Restriction of License (“ERO”) that restricted Respondent from practicing on female patients based on findings of sexual misconduct with M.V.S. On February 22, 2021, Respondent requested an expedited hearing under sections 120.569 and 120.57. The Department properly did not transmit the case to DOAH at that time, as judicial review of the ERO is via petition in the appellate court. §§ 120.60(6)(c) and 120.68, Fla. Stat. Respondent filed such a petition, but the First District Court of Appeal ultimately denied it on the merits. On March 9, 2021, the Department presented its disciplinary case to a probable cause panel of the Board. After hearing argument from both parties, the panel unanimously found probable cause to issue a three-count Administrative Complaint (“Complaint”) seeking to discipline Respondent for engaging in sexual misconduct with M.V.S. On March 10, 2021, the Department issued the Complaint. On March 16, 2021, Respondent requested an expedited formal hearing under chapter 120. However, the Department did not immediately transmit the Complaint to DOAH because it had just received notification that the VA investigated complaints of sexual misconduct against Respondent by two veterans, S.R. and M.H., who each saw Respondent multiple times between 2014 and 2016. The Department obtained records from the VA. As to S.R., the VA closed the matter as unsubstantiated based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations. As to M.H., the VA found no conclusive evidence of misconduct based on Respondent’s testimony, which was corroborated by the testimony of his nurse and a medical student. After receipt of the VA records, the Department interviewed S.R. and M.H. Based on this additional information, the Department presented its case to another probable cause panel to amend the Complaint to include allegations relating to S.R. and M.H. After hearing from both parties, the panel voted unanimously on April 23, 2021, to find probable cause of sexual misconduct with S.R. and M.H. On April 27, 2021, the Department issued the three-count Amended Complaint seeking to discipline Respondent’s license for sexual misconduct with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third request for a hearing, which sought transmission of the case to DOAH for an expedited evidentiary hearing to be held within 30 days. On April 30, 2021, 45 days after Respondent’s request for a hearing on the initial Complaint, the Department transmitted the Amended Complaint to DOAH to conduct an evidentiary hearing under chapter 120.2 2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the final hearing, and orally at the final hearing, Respondent argued that the Department improperly delayed transmitting the case to DOAH and violated his due process rights throughout the investigatory process. Even had Respondent preserved those arguments by including them in his PRO, the undersigned would have found that the Department’s investigation, the probable cause panel proceedings, and the timing of the transmittal of the case to DOAH did not render the proceedings unfair or impair the correctness of the Department’s action based on the weight of the credible evidence. For one, the Department presented its case to the probable cause panel 20 days after issuing the ERO and issued the initial Complaint the next day. It presented the new allegations to a probable cause panel 65 days after the ERO (and 44 days after filing the initial Complaint) and issued the Amended Complaint the next day. The Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day after Respondent requested a hearing on it and 45 days after requesting a hearing on the initial Complaint. Based on this timeline, the Department met its obligation to promptly institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); see also § 456.073(5), Fla. Stat. (“Notwithstanding s. 120.569(2), the department shall notify the division within 45 days after receipt of a petition or request for a formal hearing.”); Fla. Admin. Code. R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28- 106.2015, F.A.C.”). The weight of the credible evidence also failed to establish any resulting prejudice to Respondent. He presented no evidence as to how the Department’s decision to investigate the new allegations and issue the Amended Complaint before transmitting the case to DOAH prejudiced his ability to defend against the allegations. The Department notified Respondent of M.V.S.’s complaint and allowed him to provide statements during the investigation, make arguments before both probable cause panels, conduct discovery, and adequately prepare for and defend against the allegations at a final hearing. The fact that the VA did not comply with Respondent’s discovery requests or make witnesses available is neither attributable to the Department nor a reasonable basis to argue prejudice, particularly where Respondent failed to enforce subpoenas or challenge the VA’s discovery objections in state or federal court. The undersigned simply cannot find that the Department violated Respondent’s due process rights by waiting 45 days to transmit the case to DOAH while the Department investigated new allegations involving two other female patients. At best, Respondent’s alleged prejudice is that the Department was able to prosecute him for sexual misconduct with two additional patients, which it had authority to do independently by separate complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The latter option could have resulted in even more delay, as DOAH may have had to relinquish jurisdiction to allow for the new allegations to be approved by a probable cause panel if the Department had not already completed that necessary step. S.R.’s Two Appointments with Respondent in 2014 and 2015 In 2014, S.R., a 58-year-old veteran who just moved to Orlando, requested a neurology referral because she suffers from multiple sclerosis (“MS”). The VA referred her to Respondent with whom she had two office visits. On December 29, 2014, S.R. had her first appointment with Respondent at the VA Lake Baldwin facility. Respondent’s assistant took S.R.’s vitals but did not remain in the room during the examination.3 S.R. never asked for a chaperone to be present and one was not offered to her. Respondent entered the room and made introductions with S.R. They discussed the new VA facility in Lake Nona, where Respondent lived, and restaurants in that area. According to S.R., Respondent said that he hoped to see her, though she did not understand what that meant. S.R. explained that she suffered her first MS attack over 30 years earlier but only recently was diagnosed with the disease after a neurologist ordered an MRI. She discussed her current symptoms, including back pain, muscle spasms, and fatigue. Respondent told her that back problems were common for women with large breasts, which she thought was odd. But, she expressed hope that Respondent could continue to help with her symptoms much like her prior neurologists in South Carolina and South Florida. Respondent examined S.R. and tested her reflexes, vision, coordination, and physical limitations. Respondent said he wanted to listen to S.R.’s heart. Without even trying to listen over her clothes, he asked S.R. to lift her t-shirt. He began rubbing his stethoscope across both her breasts and under her bra. He then cupped the bottom of her left breast with the palm of 3 The VA advocate’s report indicated that S.R. said that Respondent instructed his assistant to leave the room prior to his examination. However, S.R. testified credibly that she never made that allegation and her handwritten statement to the VA advocate also contained no such allegation. That the VA advocate’s hearsay report says otherwise neither calls S.R.’s credibility into doubt nor undermines the clear and consistent nature of her testimony. his hand while holding the stethoscope between his fingers and touching her nipple. This portion of the examination lasted about ten seconds. At the end of the initial visit, Respondent discussed treatment plans, medication, and physical therapy with S.R. They scheduled a follow-up appointment for several months later. Respondent documented S.R.’s records based on his examination. Although S.R. testified credibly that she had a heart murmur, Respondent noted a regular heart rate and rhythm with no murmurs. He also continued S.R.’s prescription for Diazepam, though several months later he placed an addendum for that initial visit record to indicate the prescription was improperly entered under his name and that he would defer to S.R.’s primary care physician for that medication. S.R. thought Respondent’s conduct was weird because no doctor had ever listened to her heart under her clothes or touched her breasts in that manner. She felt confused and uncomfortable, but she did not report the incident then because she trusted Respondent as her doctor and thought it could have been a mistake. She also thought Respondent might be the only neurologist at the VA. She discussed the incident with her husband and decided that she would be more aware at subsequent appointments. On March 30, 2015, S.R. had her second visit with Respondent at the Lake Nona facility. She arrived early, but the office staff delayed bringing her back and then had trouble taking her vitals. S.R. did not request a chaperone for this visit because everyone seemed very busy. Respondent entered the room and they were again alone. Respondent seemed irritated because he thought S.R. arrived late, which made her defensive. She complained of left hip pain and told Respondent that she had not gone for physical therapy. He examined her hip by lifting her leg, which hurt. She then sat up and he said he needed to listen to her heart. Again, without attempting to listen over her t-shirt and bra, he told her to lift her t-shirt. Because of what occurred during the last visit, S.R. kept her arms tightly by her sides to limit Respondent’s ability to touch her breasts. He kept using his elbow to try to relax her arms while moving the stethoscope higher over her breasts, eventually cupping her breast under her bra. He grabbed at her breasts but got frustrated by her refusal to relax her arms. At that point, Respondent threw the stethoscope into the sink and became angry, which startled S.R. and made her uncomfortable. She requested that he continue her Diazepam prescription to help her sleep at night, which she said her prior neurologist prescribed for muscle spasms. Respondent told her that the drug was for anxiety, not muscle spasms, though he documented in her record that she should continue to take the medication. Respondent also documented again that S.R. had a regular heart rate and rhythm. S.R. felt uncomfortable during the entire visit. She had never had a neurologist get angry or confrontational with her, but she decided not to report the incidents at that time because she was in pain and just wanted to go home. About a month later, she awoke in the middle of the night and realized the inappropriateness of Respondent’s conduct. In August 2015, S.R. returned to the Lake Nona facility to schedule an appointment with a different neurologist. When she saw Respondent’s name on the signage, she immediately went to the patient advocate to report his misconduct in the hope of preventing him from engaging in the same behavior with other patients. She met with the patient advocate and the VA police, and she completed a written statement. Although she was supposed to testify before the VA investigative board, she had trouble finding the room that day and left without speaking to anyone. Based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations, the VA closed the matter as unsubstantiated. However, the matter was referred for clinical and/or administrative follow- up, which resulted in the VA updating its chaperone policy to require signs to be posted in the offices to put patients on notice of their right to ask for a chaperone. S.R. did not report the incidents to the Department at the time because she did not realize she could do so. But, when the Department contacted her in 2021 about this case, she agreed to participate and testify. The undersigned found S.R. to be a highly credible witness who unequivocally testified about Respondent’s inappropriate sexual behavior. S.R.’s testimony was compelling, specific, clear, and materially consistent with the statements she made when the incidents first occurred. Respondent testified about his treatment of S.R., but he conceded he had no independent recollection of the visits. Instead, he based his testimony on what he documented in her medical records and his standard practice. Respondent testified that he conducted a thorough examination in the same manner that he evaluates all of his new patients. He performed a cardiac examination over S.R.’s clothing by placing a stethoscope on her chest in several areas to listen to her heart. He confirmed that he never places the stethoscope on, or allows his hand to come into contact with, a patient’s breasts and that it was impossible that such contact happened with S.R. even inadvertently. He also said that he always has a chaperone present if he needs to listen to a female patient’s heart under her clothing and that is exactly what he would have done had he needed to do so with S.R. Respondent denied engaging in any inappropriate behavior with S.R. and suggested instead that she misperceived what happened. However, he offered no credible explanation for S.R. having such a misperception, except to accuse her of being upset for his refusal to prescribe her Diazepam. S.R.’s medical records fail to document any cognitive impairment and Respondent confirmed that she did not suffer from hallucinations or ailments that would cause her to imagine things that did not happen. Although S.R. admitted that it took her a few months to fully realize what Respondent had done and to report it to the VA, the undersigned has no hesitation in finding her testimony to be a fair and accurate account of Respondent’s actual conduct. The records themselves also call the veracity of Respondent’s testimony into question. Although S.R. credibly testified that she had a heart murmur, Respondent documented the lack of such a murmur even after conducting two cardiovascular examinations of her. Had Respondent conducted a proper cardiac examination, he should have identified and documented her murmur. Further, it cannot be ignored that the treatment plan for both visits continued her prescription for Diazepam, even though Respondent—after the first visit but before the second visit—placed an addendum in the record to indicate that S.R. needed to obtain the prescription from her primary care physician. Respondent’s notes for the March 2015 visit also document that Diazepam continued to be an active prescription for S.R., undermining the suggestion that she would fabricate an allegation of sexual misconduct against Respondent on that basis. Moreover, Respondent’s expert neurologist had never heard of a patient fabricating sexual misconduct allegations against a doctor for failing to prescribe medication. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with S.R. During the first visit, Respondent directed S.R. to lift her shirt and inappropriately rubbed his stethoscope across her breasts and under her bra, cupped her left breast with the palm of his hand while holding the stethoscope between his fingers, and touched her nipple. During the second appointment, Respondent directed S.R. to lift her shirt again. Although S.R. kept her arms tightly against her sides to try to limit Respondent’s ability to touch her inappropriately, he inappropriately rubbed the stethoscope across her breasts, cupped her breast under her bra, and grabbed at her breasts. Respondent did so on both occasions without first attempting to listen to S.R.’s heart over her clothing, which itself was contrary to the standard of care. M.H.’s Four Appointments with Respondent in 2015 and 2016 In late 2015, the VA referred M.H., a 39-year-old veteran, to Respondent for a neurological evaluation after she had an abnormal MRI showing white matter changes in her brain following an illegal drug overdose. M.H. had four office visits with Respondent at the Lake Nona facility on August 12, 2015, November 6, 2015, June 23, 2016, and August 1, 2016. During the first three visits, Respondent discussed M.H.’s medical history, prior drug use, and symptoms, including migraines, pain, possible nerve damage, and cognitive and motor issues; he also conducted physical and neurological examinations. During the fourth visit, Respondent performed a nerve block procedure to address M.H.’s migraines. M.H. testified about the visits and her uncomfortable interactions with Respondent. During several visits, he discussed the lack of sex with his wife and that she allowed him to step outside the marriage. He either asked M.H. out on a date or to meet at a hotel, which she interpreted as an offer of sex, and he also asked if he could call her. He asked her questions about her sex life several times, including how often she had sex with her boyfriend, what positions they liked, the size of her bra, and whether sex was painful. M.H. testified that Respondent also acted inappropriately. During one visit, he either lifted her shirt or asked her to lift her shirt to look at her breasts and listen to her heart. He once blocked the door to prevent her from leaving the room and attempted to put his arms around her to hug her. He once put his hands on the bottom of her buttocks, like a lover’s caress. During the fourth visit when the nurse left the room after the procedure, he had an erection and rubbed it through his pants against her leg while trying to give her a hug. She said that she told her mother in the waiting room after that visit that Respondent had rubbed his erection on her. She also said that he told her not to say anything about their interactions at each visit. In August 2016, M.H. reported Respondent’s conduct to the VA; she did not report the conduct to the Department because she did not know she could. The VA investigative board conducted sworn interviews of M.H., Respondent, his nurse, and a medical student, and it considered numerous letters of recommendation from Respondent’s patients and colleagues. It found no conclusive evidence of sexual misconduct based on Respondent’s testimony, as corroborated by testimony from a nurse and a medical student. M.H. testified passionately about Respondent’s conduct and how it made her feel. However, her recollection of the details—as to what occurred, when, and who was present—was fuzzy and inconsistent in material ways with the testimony she gave to the VA board in 2016, her deposition testimony in this case, and the testimony of her mother. M.H. stated that her recollection in 2016 was better than now, but the inconsistencies outlined below affect the weight to be given to M.H.’s testimony. M.H. testified initially that she and Respondent were alone in the examination room at some point during each visit. M.H. testified that she asked to have her daughter present during either the third or fourth visit, but Respondent refused. M.H. also testified on cross examination that she could not recall if her mother was in the room with her during the first two visits, only to later confirm that her mother must have been present during those two visits based on the testimony she gave before the VA board in 2016. M.H.’s mother testified that she accompanied M.H. to two of the visits, though she could not recall the dates. Contrary to M.H.’s testimony, her mother said she neither came back to the examination room nor met Respondent at any visit and based her testimony solely on what M.H. said. M.H.’s mother testified that M.H. said that Respondent asked her out after one visit and rubbed his erection against her back after another visit, which contravened M.H.’s testimony that Respondent rubbed his erection against her leg while hugging her from the front. Before the VA board in 2016, and contrary to her testimony at the final hearing, M.H. said that Respondent acted professionally during the first two visits and that her mother was present in the examination room both times. M.H. testified that Respondent became unprofessional while they were alone in the room during the final two visits, at which he asked inappropriate questions about her sex life. M.H. explained that she was offered a chaperone before the third visit, but she refused because nothing unprofessional had occurred before, and that Respondent refused to allow her daughter to be in the room during the procedure on the fourth visit. M.H. said Respondent grabbed her buttocks during the third visit and, during the fourth visit, he blocked the door after the procedure, grabbed her buttocks, lifted her shirt to comment on how much he liked her breasts, and rubbed his erection through his pants on her leg. When cross-examined about the inconsistencies, M.H. testified at the final hearing that she may have been protecting Respondent by saying in 2016 that he acted professionally during the first two visits, though she now recalls him acting unprofessionally during all four visits. During her pre-hearing deposition in this case, M.H. testified that Respondent asked questions about her sex life and bra size, discussed his open marriage, and asked her out during the first visit, but he did not touch her inappropriately. M.H. testified that Respondent refused to allow her daughter to stay in the room with her during the second visit and, after the examination, he blocked the door, grabbed her and tried to hug her, rubbed his erection on her stomach and leg, and again reiterated that he was allowed to have sex outside his marriage. She testified that Respondent discussed his open marriage and asked her to date him during the third visit; M.H. said that the office refused to allow her mother to accompany her in the room. M.H. testified that the only uncomfortable thing that Respondent did during the fourth visit was ask her out repeatedly. M.H. testified that Respondent never asked if she wanted a chaperone at any of the visits, though she later acknowledged that a chaperone was present at the fourth visit. Respondent testified about his treatment of M.H. based only on what he documented in her chart, as he had no independent recollection beyond his review of her medical records. Respondent denied any inappropriate behavior with M.H. He claimed that he never allowed himself to be alone in a room with her because she was engaging in manipulative, drug-seeking behavior. He basically accused M.H. of fabricating the allegations against him because he refused to prescribe her pain medication. However, Respondent’s accusations against M.H. are questionable for several reasons. Respondent never documented in her record his concern about M.H.’s alleged drug-seeking behavior, that a chaperone needed to be present at all visits, or that she had requested pain medication. Although he documented the presence of his nurse and a medical student at the fourth visit, he failed to do the same for the first three visits. One would expect a physician—surely one as concerned about a patient’s drug-seeking history and behavior as Respondent now claims to be—to document those concerns and the presence of chaperones in the medical record to prevent any future false accusation. This is particularly so given that Respondent, at the time, had recently been accused of misconduct by S.R., which he believed was both false and based on her drug-seeking behavior. The medical records also confirm that M.H. informed Respondent at the June 2016 visit that she had been prescribed Lyrica for pain while in jail and that it was working. Respondent noted, “Renewed lyrica,” in the plan/recs section of the record for that visit. Respondent also noted Pregabalin, the generic name for Lyrica,4 in both the active and pending medication lists for both the June and August 2016 visits. The weight of the credible evidence does not support Respondent’s claim that M.H. fabricated her allegations because he refused to prescribe her pain medication, particularly given her credible testimony that she did not 4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details. need pain medication because Respondent continued her Lyrica prescription. It also bears repeating that Respondent’s own expert had never heard of a patient falsely accusing a doctor of sexual misconduct for refusing to prescribe medication. After evaluating the evidence, the undersigned finds M.H. generally to be a more credible witness overall than Respondent. She testified passionately and credibly about Respondent’s requests to meet her outside the office because he had an open marriage and his wife allowed such conduct. She also credibly explained how Respondent commented on the size of her breasts, grabbed her buttocks, and rubbed his erection on her. Importantly, however, the undersigned cannot ignore that the clear and convincing evidence standard applies in this case. M.H.’s recollection was too fuzzy and inconsistent to definitively find without hesitation that Respondent engaged in the exact sexual misconduct alleged by M.H. and set forth in the Amended Complaint. If the Department’s burden in this case was a mere preponderance of the evidence, the undersigned would likely find that it proved Respondent engaged in sexual misconduct with M.H. But, the clear and convincing evidence standard applies herein. And, because M.H. could not provide the type of definitive and clear testimony required in this disciplinary action, the Department failed to prove that Respondent engaged in sexual misconduct with M.H. M.V.S.’s One Appointment with Respondent in 2020 On November 30, 2020, M.V.S., a 68-year-old woman, had an initial neurology consult with Respondent at Orlando Health. M.V.S. sought a neurologist based on an abnormal MRI showing a cyst near her pituitary gland and complaints of neck pain radiating to her shoulder and arm. After filling out paperwork in the reception area, a medical assistant or nurse brought M.V.S. to an examination room. The room had an examination table, which could be lowered, a counter, and a chair. M.V.S. sat in the chair while the assistant took her vitals. Although M.V.S. has a history of blood pressure spikes, for which she has called 911 and even gone to the hospital several times, her blood pressure was within normal limits that morning. The assistant waited for M.V.S. to complete the paperwork and then left the room. Respondent entered the room a few minutes later and closed the door behind him. He wore green scrubs and a white lab coat; she wore a skirt, blouse, bra, and underwear. He and M.V.S. were alone for the remainder of the appointment. They initially discussed M.V.S.’s medical history and complaints. M.V.S. talked about her aunt, who had symptoms of Alzheimer’s disease and did not recognize her on a recent visit. She was concerned about the disease because she recently had forgotten some small details, like the name of an actor in a movie. M.V.S. did not believe she had significant memory issues, but she wanted research on the disease because it ran in her family. Respondent asked M.V.S. if she lived with anyone, which she interpreted as a question relating to her safety. She informed him that she lived alone within close proximity to a fire station. She also mentioned that her daughter lived in Orlando and her fiancé lived in Longwood. Respondent asked if she had sexual relations with her fiancé; she explained that they did not because her fiancé had prostate cancer. M.V.S. thought the question was odd given the reason for the appointment and because no other physician had ever asked that type of question before. Respondent moved on to M.V.S.’s complaints of neck pain. She explained that she experienced pain on the left side of her neck that radiated to her left shoulder and left arm. At that point, Respondent directed M.V.S. to sit on the table so he could examine her. While standing to M.V.S.’s left, Respondent rubbed and squeezed her neck and shoulders with his thumbs and fingers for a couple of minutes. No other doctor had examined her in that fashion before. He said she felt tense, but never asked if she experienced pain during the examination. She confirmed that it definitely felt like a neck and shoulder massage, which she had received many times. She noted that her cardiologist had recently palpated her neck for pain by using two fingers to poke and feel around, which was different than Respondent’s examination. Indeed, when a doctor palpates for pain, they typically use two fingertips to lightly press and prod in the trouble areas and obtain feedback from the patient about the level of pain. Respondent then examined M.V.S.’s spine while she stood in front of him. He thereafter examined her reflexes, eyes, and extremity strength while she sat on the table. He also conducted a memory test, which she passed. M.V.S. did not recall Respondent listening to her heart during the visit. At that point, Respondent directed M.V.S. to lie face-down on the table, which already was lowered. He asked if he could raise her skirt and she said, yes, because she believed it related to a muscular or skeletal examination. He raised her skirt and, over her underwear, rubbed her lower back and eventually moved down to her buttocks using both of his hands. He rubbed and squeezed both of her buttocks. She confirmed it felt like a deliberate, prolonged massage, which had never happened to her at a doctor’s office. Her mind raced, she felt frozen, and she could not believe what was happening. After one to two minutes, Respondent told her to sit up because he heard a voice. She sat on the end of the table and he began massaging and squeezing her right breast while standing on her right. He told her that he had never done this before and that she was beautiful. She thanked him in a low voice, but she was afraid and felt trapped because they were alone, there were no witnesses, and she was unsure of what he would do. Respondent asked if M.V.S. was comfortable with him massaging her breast and he stopped when she said no. He moved to her left side and explained that his wife would not have sex with him, so she permitted him to have sex outside the marriage. He asked if M.V.S. would meet him for sex and she declined. Respondent asked if that was because her fiancé would object, and she confirmed they had a commitment. At that point, Respondent pulled his lab coat back and said, “Look at this. Look what you did to me.” Respondent revealed his erect penis, which M.V.S. confirmed was clearly visible through his scrubs. Respondent told her to keep this between us, said his assistant would be in shortly with paperwork, and left the room. M.V.S. waited for about seven minutes and, when no one came, she left the room, tried to hold her composure, and checked out. She said nothing before leaving because she felt unsafe and was unsure if anyone would believe her anyway. M.V.S. turned on her car’s air conditioning and drank water to calm down. Her heart was pounding, and she feared having a blood pressure spike. As soon as she arrived home, M.V.S. called her daughter to tell her what happened. M.V.S.’s daughter, who is a nurse, told her to call the police. M.V.S. called the LMPD that afternoon. The officer with whom she spoke suggested that she file a complaint with the Department, which she did on December 6, 2020. Both the Department and the LMPD investigated the allegations, which included interviews of M.V.S. and Respondent.5 M.V.S. also reported the incident to Orlando Health risk management. The undersigned found M.V.S. to be a highly credible witness who testified passionately and definitively about Respondent’s inappropriate sexual behavior during the office visit. She immediately reported it to the LMPD and, within a week, filed complaints with both the Department and Respondent’s employer. M.V.S.’s testimony was clear, specific, detailed, compelling, and materially consistent with the interviews and statements she gave immediately following the visit. Respondent testified about his treatment of M.V.S., but—as he did with the S.R. and M.H.—he conceded he had little to no independent 5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case into inactive status pending further evidence. recollection of her or the visit. Instead, he reviewed her medical records, which refreshed his recollection of what occurred during the visit. Respondent denied engaging in any inappropriate behavior with M.V.S. that could have been interpreted as sexual or outside the scope of a proper examination. He testified that he conducted a neurological examination, palpated her neck for pain, checked her reflexes, and conducted a memory test. He said he never massaged her neck and shoulders, touched or massaged her breasts or buttocks, discussed his marriage, solicited her to have sex, said she was beautiful, or revealed an erection through his scrubs. He also said she could not have laid face-down on the table because he never lowered the back or extended the footrest; he confirmed that he would have brought in a chaperone if he needed her to lie on the table. Respondent testified that M.V.S.’s accusations against him were the product of memory loss and cognitive impairment. Although M.V.S. reported a family history of Alzheimer’s and a fear of mild memory loss, Respondent documented that she performed well on her memory and cognitive examinations. M.V.S. and her daughter testified credibly that she did not experience significant memory loss beyond forgetting the name of an actor in a movie. Respondent himself confirmed that M.V.S. did not suffer from hallucinations or ailments that would cause her to perceive things that were not there—a point with which his expert neurologist agreed given the way Respondent documented the medical record. And, more importantly, M.V.S.’s ability to recall the specific details of the visit and do so consistently with the statements she made previously undermine Respondent’s belief that cognitive impairment caused her to fabricate her allegations. The weight of the credible evidence simply does not support the suggestion that M.V.S. misperceived, confabulated, or fabricated her allegations based on memory loss or cognitive impairment. Additionally, Respondent attempted to discredit M.V.S. by suggesting that she may have come onto him. Indeed, he testified that she was verbose and told him during their initial discussion about her history that her fiancé was older, that she was a 60s baby, and that she had not been touched in a while. Aside from M.V.S.’s credible testimony that she said no such things, it cannot be ignored that Respondent conceded that his memory of the visit was based on his review of the medical record, which contained no reference to these comments even though Respondent says they were odd. Respondent also presented evidence that M.V.S. had previously called 911 on multiple occasions relating to blood pressure spikes to undermine the veracity of her testimony. However, the recordings of the 911 calls reveal an individual who, despite being concerned about her blood pressure, is alert, aware of her surroundings, clear-headed, and in no way suffering from an illness that would raise doubts about the veracity of her testimony or her credibility overall. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with M.V.S. He inappropriately massaged her neck and shoulders, buttocks, and breast. He disclosed that he had an open marriage and solicited M.V.S. to meet him for sex outside the office. He also told her that she was beautiful and revealed his erection through his scrubs.
Conclusions For Petitioner: Kristen Summers, Esquire Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Jon M. Pellett, Esquire Pennington, P.A. 12724 Gran Bay Parkway West, Suite 401 Jacksonville, Florida 32258
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, issue a final order finding Respondent committed sexual misconduct prohibited by sections 458.331(1)(j), 458.329, and 456.063(1), suspending Respondent’s license for two years, and thereafter permanently restricting his license to either prohibit him from seeing female patients or, at a minimum, doing so without a chaperone present.7 DONE AND ENTERED this 28th day of October, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2021. 7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other discipline imposed through final order, “shall assess costs related to the investigation and prosecution of the case.” Prior to the final hearing, the parties agreed to bifurcate the investigative costs issue (including Respondent’s argument that such costs should not be assessed because they are based on unpromulgated rules) pending resolution of the merits of the Amended Complaint. Upon further reflection, the undersigned concludes that resolving such an issue—even in a bifurcated proceeding—is premature because the Board has not yet issued a final order disciplining Respondent or followed the procedure in section 456.072(4), which requires it to consider an affidavit of itemized costs and any written objections thereto. It is in those written objections where Respondent may challenge the costs as being based on an unpromulgated rule. And, if Respondent’s written objections create a disputed issue of fact, the Department can transmit the investigative costs issue to DOAH to resolve that dispute, just as it did in Case No. 20-5385F. COPIES FURNISHED: Jon M. Pellett, Esquire Pennington, P.A. Suite 401 12724 Gran Bay Parkway West Jacksonville, Florida 32258 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Paul A. Vazquez, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Kristen Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
