The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2012.
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2015.
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
Findings Of Fact At all times relevant hereto, Respondent, Jaime Benavides, held medical doctor License No. 10189 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. He currently resides at 1201 South Main Street, Belle Glade, Florida. Respondent is a graduate of the University of Pennsylvania Medical School and entered the U.S. Navy in 1949. He retired from the Navy in 1966 1/. His last duty assignment was as chief of orthopedics at the Navy hospital in Key West. He was board certified as an orthopedic surgeon in 1961 and is a Fellow of the American Academy of Orthopedic Surgeons. He has also received the Physician's Recognition Award every three years for continuing education studies and was president of the Florida Orthopedic Society for several years. Since June, 1980, he has been practicing in Belle Glade, where he is vice-chief of staff at Glades Hospital. In 1973, Robert Greene was initially treated at Respondent's clinic in Marathon, Florida. Respondent's office was in Key West, but he provided medical services at a clinic in Marathon on Tuesday of each week. Greene had suffered a wrist injury while in the service and reinjured it while employed at a grocery store in Marathon. Greene was initially treated by Respondent's associate, Dr. Schaubel, and eventually had a bone graft placed in his wrist in January, 1974, by both physicians. Schaubel prescribed Demerol for Greene and in June, 1974, Respondent began prescribing Dilaudid for pain. Between January 1, 1976, and October 4, 1976, Respondent wrote prescriptions for 3,041 Dilaudid tablets of 4- milligram strength and 518 Dilaudid tablets having 2-milligram strength. The maximum amount of Dilaudid consumed by Greene during any period of time was 10 tablets per day, with each having 4-milligram strength. During this same period of time, Greene had three additional operations on the same wrist. The second operation involved a silicone implant, the third a replacement of the implant, and the fourth replaced a bone in his wrist and realigned the implant to its proper place. A scheduled fifth operation never took place. After the third operation, Greene told Respondent he believed he was becoming addicted to the drug. Respondent "detoxed" Greene prior to the fourth operation, but Greene later requested more drugs because of the intense pain in his wrist and his inability to work as a fisherman, which required that he lift lobster traps weighing more than 125 pounds. Respondent attempted on a number of occasions to cut back the dosage, but Greene could not stand the pain and always requested that the medication be continued. Although Respondent prescribed a large number of tablets in the first 10 months of 1976, Greene did not actually ingest all the tablets since his prescriptions were lost or stolen on "numerous" occasions, thereby necessitating the obtaining of a new prescription from Respondent on each occasion. This was confirmed by testimony from the patient. Some of the prescriptions were obtained by Greene when Benavides was on rounds at the hospital or at his home and did not have his medical records present. Respondent conceded the amount of dosage was high, but said the patient had a low threshold for pain and could not support his family unless he was able to work as a fisherman. Based on the seriousness of the injury, he concluded that only Dilaudid was effective in taking care of the pain, particularly since in 1976 there were no other oral medications that were equally satisfactory. According to the 1982 Physician's Desk Reference (PDR), the following instructions appear relative to the use of Dilaudid: The oral route of administration is effective for the treatment of moderate to severe pain. The usual oral dose is two milligrams every four to six hours as necessary. The dose must be individually adjusted according to severity of pain, patient response, and patient size. More severe pain may require three to four milli- grams every four to six hours. If the pain increases in severity or relief is not ade- quate or a tolerance occurs, a gradual in- crease in dosage may be required. (p.1009) The prescriptions given by Respondent, excluding those that were lost or stolen, were consistent with this PDR instruction. An expert retained by the Department, Dr. John R. Mahoney, a board certified orthopedic surgeon, characterized the amount of Dilaudid prescribed for Greene as an "enormous amount" and "far in excess" of what his condition indicated. However, he did not take into account the fact that large amounts were never ingested by the patient since they were lost or stolen. He considered the maximum accepted daily dosage to be 12 to 16 milligrams per day for short periods of time. He conceded that larger amounts could be taken under certain circumstances. It was his opinion that Respondent's conduct in treating Green deviated from the standard of care expected from an orthopedic surgeon. Mahoney did not dispute the recommendations of the PDR on prescribing Dilaudid. He also agreed that preventing addiction by a patient is a great problem and one that is "not manageable on an individual physician's part." Michael Aulting was injured in a motorcycle accident in 1974 and suffered a fractured dislocation of his left hip. He subsequently developed a traumatic arthritis. It is unclear when Respondent began treating Aulting, but Respondent eventually performed a total hip replacement on Aulting. This was followed by the removal and replacement of a new prosthesis due to an infection and a similar procedure some two years thereafter. The exact dates of surgery were not disclosed. During the period October 2, 1975, through February 16, 1979, Benavides prescribed the following drugs for Aulting: 10/2/75 20 Dilaudid 2 mg. 11/3/75 28 Dilaudid 2 mg. 11/10/75 20 Dilaudid 2 mg. 1/10/76 45 Dilaudid 4 mg. 1/12/76 28 Dilaudid 4 mg. 5/14/76 28 Dilaudid 2 mg. 5/23/76 56 Dilaudid 2 mg. 5/30/76 46 Dilaudid 4 mg. 6/14/76 21 Dilaudid 4 mg. 6/16/76 21 Dilaudid 4 mg. 7/25/76 24 Dilaudid 4 mg. 9/16/76 30 Tuinal 100 (?) 9/17/76 30 Parest 400 (?) 9/26/76 45 Parest 400 (?) 10/11/76 21 Parest 400 (?) 10/14/77 50 Percodan (strength unknown) 11/15/76 50 Percodan (strength unknown) 11/26/76 50 Percodan (strength unknown) 12/11/78 40 Percodan (strength unknown) 12/19/78 50 Percodan (strength unknown) 12/29/78 50 Percodan (strength unknown) 1/15/79 50 Percodan (strength unknown) 1/22/79 50 Percodan (strength unknown) 1/26/79 40 Percodan (strength unknown) 2/12/79 30 Percodan (strength unknown) 2/16/79 50 Percodan (strength unknown) Aulting claimed he lost his prescriptions on several occasions. Whether any of the above were duplicate or backup prescriptions was not disclosed. Benavides described Aulting as having a low pain threshold and a fairly high tolerance to medication. Given this and the severe hip injury and associated operations, he felt the medications for Aulting were reasonable. He also believed that Aulting may have been "feigning" pain at times, and on these occasions, he would turn down his requests for more drugs. After his treatment of Aulting had ceased, he learned that Aulting may have stolen blank prescription pads from his office and forged his signature to obtain drugs. The expert retained by the Department considered the amount and level of drugs given to Aulting to be unacceptable and below the standard of care expected of an orthopedic surgeon in treating a patient with Aulting's condition. In reaching this conclusion, he relied principally upon the prescriptions written on June 14 and 16, 1976, and January 22 and 26, 1979. However, the strength of the drugs prescribed on the latter two dates was not disclosed. Dilaudid is a Schedule II narcotic pain killer and has addictive qualities. Percodan has similar characteristics. Tuinal is a nonnarcotic barbiturate with habituating qualities. The characteristics of the drug Parest were never disclosed. The Department began its investigation of Benavides in 1976 when it investigated Benavides' treatment of Aulting. In early September, 1977, the Department again sent investigators to Key West to draw a profile of Respondent in treating Greene. A report as to Greene was prepared on September 16 for the Board of Medical Examiners. No action was taken by the Department until April, 1982, when the administrative complaint was issued. No explanation was given as to why it took almost five years to formalize the charges and file a complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED THIS 18th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 18th day of November, 1983.
The Issue Whether Respondent's license to practice medicine should be revoked, or otherwise disciplined, on the ground that he, as alleged, violated the Medical Practice Act, Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979), by engaging in immoral, unprofessional con duct, incompetence, negligence, or willful misconduct, including failure to conform to the prevailing medical practice in the field of psychiatry.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I. The Doctor Respondent, Michael L. Solloway, M.D. ("SOLLOWAY") is licensed to practice medicine in Florida under License No. 11845, issued by the Board of Medical Examiners. He obtained his medical degree from the University of Miami, interned in the United States Air Force, was honorably discharged, and returned to Miami in 1968 to begin a three-year residency training program at Jackson Memorial Hospital. In 1971, he opened a private office at Suite 720, Dupont Plaza Center, Miami, Florida, and has continuously engaged in the practice of psychiatry at that location since that time. (P.E. 4.) II. The Patient On May 9, 1973, SOLLOWAY began treating, Sandra A. Lerner, a 19-year- old female. She continued receiving long-term dynamic psychotherapy from SOLLOWAY for over three (3) years--until May 16, 1977--the date when the complained-of sexual misconduct allegedly occurred. The only significant interruption of psychotherapy treatment occurred between September 30, 1974, and July 11, 1975, for reasons which are immaterial here. (Testimony of Lerner; P.E. 1, 4.) In 1973, Sandra Lerner was diagnosed by SOLLOWAY as suffering from a personality disorder--known as borderline personality. Her disorder manifested itself in poor impulse control, somatic symptoms (such as severe headaches), difficulty in relating to others and forming personal relationships, occasional hystrionic behavior, including severe rage reactions and depression when thwarted by others, and no-addictive dependence on drugs. Prior to her referral to SOLLOWAY, she had been hospitalized after an overdose of Quaaludes and received psychological testing from Gloria O. Greenberg, Ph.D., a psychologist. These tests indicated that Miss Lerner was an infantile, egocentric, hostile individual--one who had been lonely, withdrawn, and alienated for a long period of time. She had a conflicting relationship with her father which caused her serious sexual problems and an intense fear of male sexuality. Dr. Greenberg predicted that, in psychotheraphy, Miss Lerner could be expected to be childish, demanding, and manipulative. (Testimony of Lerner; P.E. 1, 2, 4.) III. The Psychiatrist-Patient Relationship During the course of her psychotherapy, Miss Lerner was a sick and troubled woman, erratic, unpredictable in behavior, and desperately needing to form and maintain a personal relationship. Her therapy sessions with SOLLOWAY, held once or twice a weak, allowed her to experience complex psychological phenomenon known as "transference". She began to feel sexual fantasies and form a personal attachment toward SOLLOWAY; she idealized him and saw him as a nurturing father figure. "Transference" is frequently experienced in psychotherapy; it can be a valuable therapeutic tool to help patients understand and overcome their illness. In this case, SOLLOWAY was aware that "transference" was taking place during his extended therapy sessions with Miss Lerner. However, instead of maintaining a professional detachment, SOLLOWAY began to experience personal and subjective feelings toward Miss Lerner, a form of "counter-transference". Prior to May 16, 1977--the date of his alleged sexual misconduct with Miss Lerner--SOLLOWAY had twice discussed with Miss Lerner that, if they engaged in dating and a social relationship, their psychotherapeutic, doctor-patient relationship must end. 2/ (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, 9.) IV. Sexual Activity During Therapy On May 16, 1977, at 5:00 or 6:00 p.m., Miss Lerner arrived at SOLLOWAY's office for her regular psychotherapy appointment. She was "high", having just taken one-half a Quaalude capsule. After entering his office, their conversation turned to the nature of their relationship. SOLLOWAY told her that he could be her boyfriend if she understood that he could never again be her doctor. 3/ After acknowledging such, she went to the door and locked it, as instructed by SOLLOWAY. At the time, she sensed what he was going to do, and felt he was testing her; she feared his rejection. He then told her to take her clothes off; after she complied, he did likewise, and both engaged in sexual intercourse. (Testimony of Lerner; P.E. 4, 9.) After that day, Miss Lerner no longer received psychotherapy treatment from SOLLOWAY. They began a stormy social relationship and briefly cohabited from June, 1978, to January, 1979, when SOLLOWAY moved out. His rejection made her hostile, angry, and vindictive. She began a campaign to harass and annoy SOLLOWAY at his home--resulting in the issuance of a temporary injunction to restrain her. Her harassment of SOLLOWAY was consistent with her personality disorder--a disorder with which she continued to be afflicted. (Testimony of Lerner, Hamilton, Holzberg; P.E. 4, R.E. 1, 2.) V. Prescription of Drugs to Sandra Lerner: Inappropriate Medical Practice SOLLOWAY prescribed the following mood altering drugs for Sandra Lerner on the dates and in the amounts indicated: DATE DRUGS NO. OF PILLS 7/5/78 Sopor 7 7/12/78 Sopor 7 9/22/78 Quaalude or 15 Sopor 9/30/78 Quaalude or 7 Sopor 10/17/78 Quaalude or 7 Sopor 11/27/78 Quaalude or 7 Sopor 11/30/78 Quaalude or 3 Sopor 12/23/78 Quaalude or 14 Sopor 12/27/78 Percodan 30 1/2/79 Quaalude or 14 Sopor (Prehearing Stipulation of Respondent, Paragraph V, Testimony of Lerner.) Miss Lerner had a drug abuse history well known to SOLLOWAY, including Seconal and Quaalude overdoses in 1973 and a Quaalude overdose in January, 1977. By prescribing the drugs indicated in paragraph 7, supra, to Miss Lerner, a person known by him to abuse Quaaludes, SOLLOWAY engaged in an inappropriate medical practice; furthermore, the prescriptions of tranquilizers and mood altering drugs on December 27, 1978, and January 2, 1979, were excessive in quantity, irrespective of the patient's ailment which they were intended to remedy. (Testimony of Shellow.) SOLLOWAY prescribed the above drugs to Miss Lerner at a time when she was his close friend, not his patient. Such prescription of drugs to a non- patient does not constitute a deviation from an acceptable standard of medical practice, as long as the prescription is for the benefit of the individual. (Testimony of Lerner, Rose; P.E. 4.) Evidence was offered to show that SOLLOWAY used certain drugs for recreational purposes and that he prescribed drugs to others for such purposes. Such evidence, except insofar as it applies to prescriptions to Miss Lerner, is outside the scope of the DEPARTMENT's charges against him. To the extent the DEPARTMENT asserts that the prescription of drugs to Miss Lerner, as indicated above, was contrary to acceptable medical practice because she subsequently used them for recreational purposes, such assertion is unsupported by persuasive evidence. The only testimony offered to establish such a preposition was that of Miss Lerner; her credibility was impeached by her subjective demeanor, bias, evasiveness, and expressed hostility toward SOLLOWAY. (Testimony of Lerner.) VI. Medical Ethics: Sexual Activity Between Psychiatrist and Patient Prohibited Sexual activity between a psychiatrist and patient is unethical, and proscribed by the Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry (1978 Edition Revised) . The Annotations, supra, stress the paramount importance of the psychiatrist's duty to avoid gratifying of his own needs by exploiting a patient: This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psy- chiatrist. Further, the necessary intensity of the therapeutic relationship may tend to acti- vate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control . . . Section I, Paragraph 1 and 2, Principles with Annotations. VII. Investigation and Hearing by South Florida Psychiatric Society At all times material hereto, SOLLOWAY was a member of the South Florida Psychiatric Society, Inc., a district branch of the American Psychiatric Association. Membership in the Society is limited to psychiatrists practicing in the south Florida area. Miss Lerner filed with the Society a complaint charging SOLLOWAY with unethical conduct. On August 14, 1979, the Ethics Committee of the Society met to investigate the complaint and formulate a recommendation. (testimony of Holzberg; P.E. 10.) At the Ethics Committee hearing, SOLLOWAY was charged with violating Section 1, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry by (1) exploiting his patient and gratifying his own needs by engaging in sexual activity with Miss Lerner; and (2) prescribing drugs (Quaalude and Dexedrine) to Miss Lerner for non- therapeutic purposes. Miss Lerner testified, and was aided by Norma Hamilton, M.D., a psychiatrist assigned to assist in presenting her complaint. SOLLOWAY was accorded the right to confront his accuser, was represented by counsel, and was present throughout the hearing. He testified in his own behalf, and answered questions of the Committee members. At the conclusion of the hearing, the Committee unanimously sustained the charge that SOLLOWAY engaged in sexual intercourse with Miss Lerner, his patient, and exploited her to gratify his own needs, it unanimously concluded, therefore, that he was guilty of unethical conduct in violation of Section I, Paragraphs 1 and 2 of the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry and recommended (by 4-1 vote) that he be suspended from the Society for a period of 12 months. As to the other charge, the Committee concluded that insufficient evidence was presented to support the allegation that SOLLOWAY prescribed drugs for non-therapeutic purposes, and recommended that no action be taken. On August 14, 1979, the Executive Council of the Society considered, and adopted the Committee's recommendations; by letter dated August 24, 1979, the Council recommended to the American Psychiatric Association that SOLLOWAY be suspended from membership for 12 months. That suspension recommendation is still pending, and no final action by the Association has been taken. (Testimony of Holzberg, Hamilton; P.E. 9, 10.) VIII. Termination and Sexual Activity: Breach of Accepted Standard of Care The medical ethic which prohibits sexual activity between a psychiatrist and patient applies only if a psychiatrist-patient relationship exists. The essence of SOLLOWAY's defense is that the psychiatrist-patient relationship between he and Miss Lerner ended, by mutual agreement, during the beginning of the May 16, 1977, therapy session, and prior to any sexual activity: Q. (By Mr. Glass) Dr. Solloway, you indi- cated that, in your opinion, your pro- fessional relationship as a psychiatrist to Sandra Lerner as a patient was ter- minated on May 16 of 1977. In what fashion was it terminated, how was it terminated? A. (Dr. Solloway) I suggested that it be terminated, and she agreed. Q. (Mr. Glass) And in your opinion it was terminated on that date? A. (Dr. Solloway) Absolutely. (Deposition of Michael L. Solloway; Pg. 54, P.E. 4.) Under acceptable psychiatric practice, termination of the psychiatrist-patient relationship--the ending of the psychotherapeutic bond-- requires more than the consent or acquiescence of the patient, or the stopping of formal therapy sessions. In psychotherapy, termination refers to a psychological process which takes place between the doctor and patient. 4/ They work through this transitional process together. It does not occur at any particular moment of time; the manner and length of time required will depend on the circumstances of the case--such as the condition of the patient, and nature of the doctor-patient relationship. When a patient suggests ending the psychotherapeutic relationship, the psychiatrist's task is to be supportive and allow the patient to work through the process. Not infrequently, the desire to end psychotherapy is influenced by the patient's mental or emotional illness. (Testimony of Hamilton, Holzberg, Shellow.) Under the circumstances of this case, the manner in which SOLLOWAY attempted to abruptly terminate his psychiatrist- patient relationship with Miss Lerner deviated from and breached the prevailing and accepted psychiatric standard of care and practice in his community. SOLLOWAY recognized, prior to May 16, that he was losing his objectivity toward Miss Lerner and that he was experiencing subjective feelings toward her. He was reciprocating her "transference" with his own "counter-transference"; nonetheless, instead of working through with his patient an acceptable termination of their relationship, he used her consent to termination as an opportunity to act out his "counter-transference" --by engaging in sexual activity with her. SOLLOWAY has admitted that his attempt to terminate the relationship was ineffective: Dr. Nixon: "I can understand that at the time your judgement was clouded by the counter-trans- ference. As you look back on it do you believe now that treatment can--that a doctor-patient relationship can be terminated where there is such a transference and counter-transference in that fashion?" Dr. Solloway: "No, obviously not. " (Pg. 62, P.E. 9.) (Testimony of Hamilton, Shellow, Holzberg; P.E. 4, 9.) SOLLOWAY's attempted termination of his psychiatrist- patient relationship with Miss Lerner on May 16, 1977, deviated from the accepted standard, and was not effective. By his subsequent acting out of his own counter-transference toward Miss Lerner, he sexually exploited his patient to gratify his own needs. Such conduct by SOLLOWAY was unethical, unprofessional, and deviated from the prevailing and acceptable practice in the field of psychiatry. His actions caused Miss Lerner a lengthy period of anxiety, and it will be difficult for her to reestablish a relationship with another psychiatrist which is necessary for effective treatment. (Testimony of Hamilton, Holzberg, Shellow, Lerner; P.E. 4, 9.)
Conclusions Conclusions: Respondent violated Sections 458.1201 (1)(m), Florida Statutes (1978), 458.331(1) Florida Statutes (1979), by attempting to terminate the psychiatrist-patient re- lationship with a female patient, and then sexually exploiting her for the purpose of gratifying his own needs. Insufficient evidence was presented to establish that his subsequent prescription of drugs to that patient violated the Medical Practice Act. Recommendation: Suspend Respondent's license to practice medicine for a period of one (1) year.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the DEPARTMENT suspend Respondent Michael L. Solloway's license to practice medicine, License No. 11845, for a period of one (1) year. DONE AND ENTERED this 12th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of November, 1980.
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
