Findings Of Fact Based upon the stipulation filed in this cause, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent, Randall E. Pitone, M.D., is a medical doctor licensed (license number ME 0029098) by the State of Florida since 1976. Respondent is a diplomate in psychiatry having received certification from the American Board of Psychiatry and Neurology. At all times material to the allegations of this case, Respondent was in the practice of psychiatry in the State of Florida. Respondent has been affiliated with or authorized to practice in a number of hospitals in the Pinellas County area. He enjoys a good reputation among the community of practicing psychiatrists and has covered for several of them during the course of his practice. The Respondent became Patient 1's treating psychiatrist in 1982 when the patient was almost 18 years of age. Patient 1 has a borderline personality disorder and other problems for which she required treatment. In order to more effectively provide treatment for borderline patients, Respondent attended at least two courses related to borderline personality disorder during the early 1980s. From September, 1982 through May, 1988, Respondent treated Patient 1 with individual psychotherapy. During this time, Patient 1 was hospitalized on several occasions and Respondent counseled with her within the hospital setting and at his office. Borderline patients are typically very needy, seductive, and manipulative in their approach to others. During her period of treatment Patient 1 frequently attempted to initiate a romantic relationship with Respondent who diplomatically refused her advances. On each of these occasions, Respondent explained to Patient 1 that he could not have a romantic relationship and continue therapy. Also during this period, Respondent was married and devoted to his family. In May, 1988, Respondent and Patient 1 ended their formal physician- patient relationship. Patient 1 was not sincerely pursuing therapy. Additionally, she had a new boyfriend with whom she seemed happy. Respondent encouraged her to seek therapy but she mistakenly believed that she did not need it. Although she would periodically drop by to visit with Respondent, she did not make appointments for therapy. Nor did she obtain therapy from another psychiatrist despite Respondent's encouragement for her to do so. Respondent's wife left him sometime in 1988. Her departure was very difficult for Respondent. The couple divorced in June, 1988, and Respondent's former wife remarried shortly thereafter and moved to Georgia. Respondent's children resided with him until sometime in 1989 when they moved to their mother's home. Subsequently, Respondent allowed Patient 1 to move into his home. She resided with him from June, 1989 until April, 1990. Throughout this period of cohabitation, Respondent included Patient 1 in his family activities. She went to his brother's home with him for Christmas and went on a cruise to Jamaica with his relatives. Respondent did not hide their relationship from his family or friends. During this period Respondent and Patient 1 engaged in sexual intercourse. Patient 1 has been hospitalized on several occasions since 1982. During one such hospitalization, on or about October 30, 1988 (after formal therapy had ended), Dr. Helm consulted with the Respondent regarding Patient 1's suspected drug abuse. Patient 1 has a serious addiction to alcohol, cocaine, and crack cocaine. This addiction dates at least as far back as the summer of 1989, and perhaps earlier. Respondent knew of Patient 1's addiction to cocaine and of her abuse of other substances. Respondent prescribed medications for Patient 1 in a misguided effort to wean her from street drugs. Whenever Respondent refused to give Patient 1 prescriptions, she would become outraged and destructive. On one such occasion, Patient 1 exited the car in which the couple was travelling and bolted in front of an oncoming truck. As a result Patient 1 was hospitalized with a broken pelvis. Between May, 1988, and March, 1990, Respondent wrote or authorized the prescriptions listed in attachment A for Patient 1. These prescriptions were given to Patient 1 despite the fact that she was no longer formally receiving psychotherapy from Respondent. Moreover, many of the prescriptions issued are not of the type generally associated with the treatment of psychiatric patients since they are more commonly associated with pain relief. Amitriptyline is a legend drug. Dalmane is a brand name of flurazepam, a legend drug and controlled substance. Valium is a brand name of diazepam, a legend drug and controlled substance. Xanax is a brand name of alprazolam, a legend drug and controlled substance. Darvocet is a brand name of a compound containing propoxyphene, a legend drug and controlled substance. Tylenol #3 and Tylenol #2 are brand names of acetaminophen or apap with codeine, legend drugs and controlled substances. Percodan is a brand name of oxycodone with aspirin, a legend drug and controlled substance. Percocet is a brand name of oxycodone with acetaminophen or apap, a legend drug and controlled substance. Legend drugs are required by federal or state law to be dispensed only on a prescription. Respondent inappropriately prescribed legend drugs/controlled substances to Patient 1. Respondent prescribed drugs for Patient 1 after they were living together and engaging in sexual relations. The types and quantities of prescriptions written by Respondent for Patient 1 were not justified by examinations and records maintained by the Respondent, were not issued in the course of medical practice, and were clearly excessive. By prescribing the drugs listed in attachment A, Respondent failed to provide Patient 1 with that level of care, skill and treatment, which a reasonably prudent similar physician recognizes as acceptable under the conditions and circumstances of this case. Respondent also failed to seek consultation in connection with his concerns over Patient 1. Instead, Respondent set himself up as her sole provider and savior. This action was medically inappropriate and further evidences Respondent's loss of objectivity in this instance. In effect, Respondent became a patient in need of treatment as a result of his erroneous and misguided efforts to assist Patient 1. On April 11, 1990, an order of emergency restriction of Respondent's license was issued by Larry Gonzalez, acting as Secretary of the Department. That order placed specific restrictions on the Respondent's license which include: -the prescription of controlled substances utilizing sequentially numbered triplicate prescriptions; -the review of each prescription by a supervisory physician; -the prohibition of providing medical services to Patient 1; and -the submission of monthly reports by a monitoring physician which includes specific information regarding Respondent's practice, any problems, a review of prescriptions and patient records. To date, Respondent has complied with the restrictions placed on his license. Additionally, Respondent has sought and obtained psychiatric counseling in connection with his errors in thinking related to his relationship with Patient 1. Respondent developed a rescue fantasy in which he perceived that he alone could assist Patient 1 recover from her illnesses. This was not a medically sound approach to the dilemma within which Respondent became embroiled. As Respondent fell in love with Patient 1, he lost his professional perspective and undertook this ill-fated rescue of her. An examination of Respondent's medical records does not suggest that the activities which gave rise to the allegations of this case have occurred regarding other patients. From the circumstances of this case, it is unlikely another incident or series of incidents of this type will recur. Sexual activity between a psychiatrist and his patient has detrimental effects on the patient. In this instance, that conduct had detrimental effects on both the Respondent and Patient 1. Since Respondent fell prey to Patient 1's manipulative nature, his judgment became impaired and she was able to orchestrate an inappropriate response from Respondent. It cannot be found, however, that Respondent used their relationship to induce Patient 1 to engage in sexual activity.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(m), (q), and (t), Florida Statutes, and imposing the following penalties: suspension of the Respondent's license for a period of one year during which time the Respondent shall continue counseling, followed by a two year period of probation under the terms set forth in the emergency order issued April 11, 1990, together with an administrative fine in the amount of $5,000.00. DONE and ENTERED this 14 day of November, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of November, 1990. APPENDIX TO CASE NO. 90-3276 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 20 are accepted. With regard to paragraph 21 it is accepted that Respondent provided the prescriptions as described, however, he had formally ended psychotherapy of Patient 1 in May, 1988. It was inappropriate for him to issue the prescriptions. Paragraphs 22A. and 22C. are accepted. Paragraph 22D. is rejected to the extent that it finds Respondent did not maintain appropriate records, otherwise, rejected as contrary to the weight of the credible evidence. Note: there is no paragraph 22B. Paragraph 23 is accepted. Paragraph 24A. is accepted. Paragraphs 24B. and 24C. are rejected as contrary to the weight of credible evidence. With regard to paragraph 25 it is accepted that Respondent prescribed substances for Patient 1 inappropriately and excessively, otherwise the paragraph is rejected as contrary to the weight of the evidence or a conclusion of law. Paragraphs 26, 27, 30 and 31 (because it allowed her to manipulate Respondent into prescribing inappropriately--he should have been the physician not a co-patient) are accepted. Paragraphs 28 and 29 are rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. To the extent addressed in findings paragraphs 3 through 7, Respondent's paragraphs 4 through 9 are accepted; otherwise rejected as irrelevant or a recitation of testimony. With the exception of the last sentence, paragraph 10 is accepted. The last sentence is rejected as speculative or conjecture--it is accepted that Respondent was in a stress-filled, emotional situation. Paragraphs 11 through 14 are accepted. Paragraph 15 is rejected as irrelevant. Paragraph 16 is accepted but is irrelevant. Paragraph 17 is accepted. Paragraphs 18 through 19 are accepted. Paragraphs 20 through 23 are rejected as recitation of testimony but see findings of fact paragraphs 27, 28, and 29. Paragraphs 24 through 28 are rejected as recitation of testimony. With regard to paragraph 29 it is accepted that the Respondent does not pose a threat to the public under his current circumstances. Otherwise, paragraph 29 is rejected as recitation of testimony or irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as recitation of testimony. Paragraph 32 is accepted. Paragraph 33 is accepted. ATTACHMENT A Date Drug Prescribed 5/14/88 Dalmane 6/02/88 Valium 7/15/88 Percodan 7/20/88 Percodan 7/27/88 Xanax 7/27/88 Percodan 8/12/88 Percodan 9/06/88 Percodan 9/13/88 Zantac 9/23/88 Percodan 10/7/88 Darvocet N-100 10/29/88 Xanax 11/18/88 Percodan 01/6/89 Xanax 1 mg 01/09/89 Xanax 1 mg 01/10/89 Percodan 01/11/89 Xanax 01/16/89 Xanax 01/18/89 Xanax 01/21/89 Xanax 01/20/89 Tylenol 3 01/24/89 Tylenol 3 01/25/89 Tylenol 3 01/26/89 Xanax 01/31/89 Xanax 02/02/89 Percodan 02/04/89 Xanax 1mg 02/04/89 Percodan 02/04/89 Xanax 1mg 02/09/89 Percodan 02/10/89 Xanax 02/10/89 Percodan 03/03/89 Xanax 03/03/89 Percodan 03/13/89 Percodan 03/14/89 Xanax 1mg 03/17/89 Percodan 03/20/89 Xanax 03/24/89 Xanax 03/24/89 Percodan 03/27/89 Percodan 03/27/89 Xanax 03/29/89 Percodan 03/31/89 Percodan 04/07/89 Xanax 1mg 04/10/89 Percocet 5mg 04/11/89 Percodan 04/21/89 Percodan 04/24/89 Percodan 04/25/89 Percodan 04/25/89 Xanax 04/26/89 Percodan 04/28/89 Percodan 04/28/89 Xanax 04/29/89 Percodan 05/01/89 Xanax 05/02/89 Percodan 05/04/89 Percodan 05/05/89 Percodan 05/09/89 Xanax 05/11/89 Xanax 05/14/89 Xanax 1 mg 05/18/89 Xanax 1 mg 05/20/89 Xanax 1 mg 06/06/89 Xanax 1 mg 06/08/89 Percodan 06/09/89 Xanax 1 mg 06/09/89 Percodan 06/14/89 Xanax 1 mg 06/14/89 Percodan 06/16/89 Xanax 1 mg 06/23/89 Xanax 1mg 06/24/89 Percodan 06/26/89 Percodan 07/01/89 Xanax 07/07/89 Xanax 1 mg 07/07/89 Percodan 07/10/89 Percodan 07/15/89 Percodan 07/17/89 Percodan 07/20/89 Percodan 07/21/89 Valium 10 mg 07/21/89 Percodan 07/28/89 Percodan 07/30/89 Valium 07/31/89 Percodan 08/02/89 Percodan 08/04/89 Percodan 08/05/89 Valium 10 mg 08/07/89 Valium 10 mg 08/07/89 Percodan 08/09/89 Percodan 08/20/89 Valium 10 mg 09/01/89 Percodan 09/04/89 Valium 09/06/89 Percodan 09/19/89 Percodan 09/22/89 Valium 09/22/89 Percodan 09/28/89 Percodan 10/01/89 Percodan 10/02/89 Percodan 10/02/89 Valium 10 mg 10/04/89 Valium 10 mg 10/04/89 Percodan 10/05/89 Xanax 1 mg 10/06/89 Percodan 10/13/89 Darvocet-N. 100 10/13/89 Valium 10/13/89 Tylenol #2 10/17/89 Tylenol #2 10/19/89 Valium 5 mg 10/20/89 Tylenol #3 10/24/89 Tylenol #3 10/24/89 Valium 5 mg 10/25/89 Tylenol #3 10/26/89 Percocet 10/30/89 Percocet 10/30/89 Tylenol #4 10/30/89 Valium 10 mg 11/03/89 Percodan 11/17/89 Percodan 11/17/89 Valium 10 mg 11/24/89 Valium 10 mg 11/24/89 Percocet 11/27/89 Percocet 11/29/89 Percocet 01/02/90 Valium 10 mg 01/02/90 Percodan 01/12/90 Tylenol #3 01/12/90 Valium 10 mg 01/13/90 Xanax 1 mg 01/17/90 Tylenol #3 02/04/90 Xanax 1 mg 02/17/90 Percodan 02/20/90 Percodan 02/28/90 Percodan 03/10/90 Percodan 03/16/90 Percodan 03/17/90 Percodan COPIES FURNISHED: Bruce D. Lamb Chief Trial Attorney Department of Professional Regulation 730 Sterling Street, Ste. 201 Tampa, Florida 33609 Grover C. Freeman FREEMAN, LOPEZ & KELLY, P.A. 4600 West Cypress, Ste. 500 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
The Issue The ultimate issues for determination are whether Respondent, Dr. Lieberman, committed the violations as alleged, and if so, what license discipline is appropriate. More specifically, did the following violations of Chapters 893 and 458, Florida Statutes, regulating the practice of medicine occur as alleged: As to Patient, M. A. Sections 893.05, Florida Statutes, and Section 458.1201(1)(k), Florida Statutes, (1977) reenacted as Section 458.331(1)(g), Florida Statutes, (1987) -- by inappropriately prescribing certain drugs classified as controlled substances. Section 458.1201(1)(m), Florida Statutes, (1977) reenacted as Section 458.331(1)(j) and (t), Florida Statutes, (1987) -- by utilizing examinations for his own sexual gratification, by making inappropriate remarks during examinations and by engaging in sexual activity with the patient within the patient-physician relationship. As to Patient, L. I. Sections 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, -- by forcibly engaging in sexual intercourse with a patient and by inappropriately using the examination for his own sexual gratification. As to Patient, D. B. Section 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, by engaging in sexual conduct with a patient and using the examination for purposes of obtaining sexual gratification. As to Patient, B. J. (Case NO. 88-3334) Section 458.331(1)(t), Florida Statutes, by failing to obtain appropriate tests on a patient who was later diagnosed as having cervical cancer.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaints, Robert A. Lieberman was a physician licensed to practice medicine pursuant to Chapter 458, Florida Statutes, and holding license number ME 0023165. After two years in the U.S. Navy, serving as a physician with the rank of Lt. Commander, Dr. Lieberman opened a private practice in Orlando, Florida in 1976. At all times relevant to the allegations of the complaints, Dr. Lieberman has been Board Certified in obstetrics and gynecology and maintained his practice at 615 East Princeton Street, in Orlando, Florida. Dr. Lieberman's practice includes approximately 6500 patient visits per year and the delivery of approximately 180 infants per year. M. A. Patient M. A., also known as M. Q., was treated by Dr. Lieberman from February 1, 1977 until May 31, 1979. She also visited the office on October 24, 1979 for a pregnancy test, but was not seen by Dr. Lieberman on that date. During the course of her visits she was treated for a variety of complaints including difficulty in adjusting to birth control pills, gynecological infections, post-coital bleeding and a spontaneous abortion. She underwent an induced abortion on February 7, 1977, and later became an obstetric patient of Dr. Lieberman. She delivered a live birth on June 29, 1978. During the course of her treatment M. A. was an extremely stressed and disturbed young woman. In January 1978, She reported having been beaten by her boyfriend. She also reported heavy usage of cocaine and "sopors" (methaqualone) In January 1979, she reported she was raped. At one point, during a divorce, she wrote an anguished letter to Dr. Lieberman asking that he be her "shrink" (her term, which in the context of the letter meant counselor). (Petitioner's Exhibit 7.) During the course of his treatment of M. A., Dr. Lieberman's office notes and copies of prescriptions reflect the following controlled substances that he prescribed for her: Date 2/7/77 Type Percodan Dosage (not indicated) Number 12 2/22/77 Valium 10 mgs 30 3/1/77 Percodan (not indicated) 30 3/1/77 Quaaludes (not indicated) 10 3/10/77 Valium 10 mgs 30 3/18/77 Valium 10 mgs (not indicated) 5/6/77 Valium 10 mgs 60, plus one refill 5/20/77 Quaaludes 300 mgs 15, plus one refill 5/27/77 Valium 10 mgs 60, plus one refill 8/11/77 Tranxene 7.5 60 1/4/78 Phenobarbitol 1 gr 60, plus one refill 1/4/78 Darvocet N100 60 5/17/78 Quaaludes 300 mgs 30 7/13/78 Fiornal No. 3 20 7/17/78 Seconal 100 mgs 10 7/20/78 Fiornal No. 3 20 8/4/78 Quaaludes (not indicated) 30 8/7/78 Fiornal No. 3 15 8/24/78 Quaaludes 300 mgs 30 9/18/78 Quaaludes 300 mgs 30 9/19/78 Quaaludes (not indicated) 30 9/25/78 Quaaludes 300 mgs (not indicated) 10/10/78 Quaaludes 300 mgs 30 11/1/78 Quaaludes 300 mgs 30 11/6/78 Valium 10 mgs 30, plus two refills 11/6/78 Valium (not indicated) 30, plus two refills 12/15/78 Percodan (not indicated) 20 12/26/78 Quaaludes 300 mgs 30 1/2/79 Quaaludes 300 mgs (not indicated) 1/15/79 Placidyl 500 mgs 30 2/1/79 Valium 10 mgs 30 5/31/79 Placidyl 750 mgs 30 The medical records also reveal that M. A. was given a single injection of Demerol at the time of her abortion procedure on February 7, 1977. No evidence supports the allegation that this use of the drug was inappropriate. Quaaludes are a depressant and were prescribed for sleep, primarily. They have an effect comparable to barbiturates. They are highly addictive and, while legal at the time that Dr. Lieberman was prescribing them for M. A., they were removed from the market around 1982 because of their abuse. Placidyl is also a sleeping pill, although in a different class of drugs than Quaalude. Tranxene is similar to Valium and both are used as tranquilizers. Dr. Lieberman's office notes did not reflect the basis for the wide array and sometimes frequent prescriptions. In several instances he prescribed Quaaludes without any notation in his office records. This occurred on August 24, 1978, September 18, 1978 and October 10, 1978. Nevertheless, the testimony of the agency's physician witnesses lacked specificity with regard to the propriety of Dr. Lieberman's prescriptions to this patient. Dr. Curry felt that the prescriptions for Quaaludes were "excessive" and that it was "unwise" for a physician to prescribe this quantity of a popular street drug to a known drug abuser. (Petitioner's Exhibit 2, pp. 6 and 10.) He offered no opinion on the other controlled substances. Dr. Rudolph had a close family member who had a problem with Quaaludes and he would never prescribe this drug. He was concerned generally with regard to the variety of drugs, but could conclude that only the Quaaludes were absolutely, totally, unnecessary. (Petitioner's Exhibit 1, P. 71.) Neither physician was qualified as an expert in pharmacology and neither was particularly familiar with M. A.'s records, as they had difficulty reading the office notes. M. A.`s testimony with regard to her experiences as Dr. Lieberman's patient was vague and confused. Ten years ago she was, as she described, a different person, under substantial stress and thoroughly habituated to drugs. She claims that Dr. Lieberman knew that she was a substance abuser and willingly provided her with the prescriptions she sought. She also claimed that he made embarrassing "joking and filthy" comments about the appearance of her genitalia during her pelvic examinations. She also claims that on one occasion, when she had gone to his office seeking drugs, he required that she perform oral sex on him. The dates and specifics of these charges were not provided. M. A. admitted that during the period in question, she was on tranquilizing drugs all of the time and that she was not aware of all that Dr. Lieberman had done to her until 1982 or 1983. Prior to her testimony in this proceeding she had given sworn statements in deposition or otherwise with regard to her relationship with Dr. Lieberman. In one such statement given on November 9, 1984, she testified that she was a patient of Dr. Lieberman in the early 70's and that he prescribed drugs for her for a period of about eight years. (Petitioner's Exhibit 8.) The patient records and prescriptions substantiate that M. A. was a patient for approximately two years (1977-1979). Dr. Lieberman was not in private practice until 1976, and M. A. concedes that she first met him when she visited his office at East Princeton Street. In addition to discrepancies in dates, M. A. at various times claimed that Dr. Lieberman made advances or fondled her prior to the oral sex incident and, in contradiction, claimed that she was surprised by the incident as sex had never come up at all other than verbal teasing. (Transcript, pp. 52 and 68, Petitioner's Exhibit 3, P. 10.) In summary, M. A. was an earnest and emphatic witness. However, the lavish and unspecific charges she has made cannot alone form the basis of proof of the violations related to this patient in the Administrative Complaint. In spite of the ten years time that has elapsed since these violations allegedly occurred, the agency failed to produce written records, prescriptions, and corroborating testimony from the other patients through whom M. A. claimed Dr. Lieberman was supplementing her drugs, to substantiate her charges. L. I. L. I. was Dr. Lieberman's patient from July 1978 until November 1982. She was initially treated for conditions requiring a total abdominal hysterectomy. She had follow-up visits and was seen intermittently for other non-related complaints through April 1980. Two years later she again visited Dr. Lieberman on June 8, 1982, when she presented complaints of pain in her left side. On June 17, 1982, she was hospitalized and Dr. Lieberman performed an exploratory laparotomy with lysis of adhesions. That is, abdominal surgery was performed and adhesions or scar tissue attached to the ovary were broken apart, without complications. She was discharged after some further tests related to digestive and vision problems, on June 25, 1982. On July 2, 1982, L. I. returned to Dr. Lieberman's office for a post- operative examination and for removal of her bandages. At the time of the examination, as instructed, L. I. kept her clothing on, except for her underpants, which she removed. She was given a paper sheet which she used as she lay an the examining table. Dr. Lieberman conducted the examination without a chaperone, pulling the sheet up and pressing around the abdomen area. After the examination, he said she could get up and reached out to help her when she had difficulty. Instead of moving away, he stood and stared at L. I. as she sat on the table with her legs outstretched. This made her uncomfortable. He told her to scoot forward and when she did not, he pulled her forward and unzipped his pants. L. I. protested verbally with, "Don't do this, and "this is not right." He then leaned forward and quickly had sexual intercourse with her. Afterwards L. I. sat and cried. He turned to the sink and handed her tissues and asked if he had hurt her. He said that he did not want her to be upset, that it was important that she not say anything and that he would see her again in two weeks. (Transcript, Vol. I, pp. 79-86.) L. I. did not report the rape. She was profoundly embarrassed and felt that she was at fault for not struggling. In order to return to work after her surgery, L. I. had to have a release from her attending physician. She returned to Dr. Lieberman's office on July 20, 1982, as he was the only person who could provide the release insisted on by her employer. The nurse instructed her to get undressed for a pelvic examination. She questioned why a pelvic examination was necessary, but did undress. The nurse left and Dr. Lieberman entered the examining room. As he walked toward her, L. I. put her hand up and said, "No, not until the nurse comes'. He turned, and L. I. thought he had pushed a call button for the nurse. She stretched back on the table positioned for the examination, with her feet in the stirrups. Dr. Lieberman stood next to her at the side of the table, rather than at the end of the table between the stirrups, where a pelvic examination is usually conducted. He touched her between the legs with his bare hand and L. I. heard him undoing his pants. She said, "Oh, not this again," and the phone rang in the examining room. As he turned to answer the phone, she sat up and wrapped herself with the sheet. After the call, he walked out. As L. I. was getting dressed, he walked back in. She said, Just give me my release and I'll go". He told her to sit down and calm herself; she sat on the stool where her clothes had been and asked again for the release. He told her it was important not to say anything about what happened, that it had never happened before; he wrote her release on a prescription pad and left. (Transcript, Vol. I, pp. 90-94.) L. I. returned to Dr. Lieberman's office for one final visit in November 1982. She had received a card in the mail reminding her that it was time for a Pap test. By then she had thought about what had happened and felt that, given another opportunity, she could struggle or scream and someone would believe her. Otherwise, she was concerned it was just her word against the doctor. On this occasion, she undressed fully for the exam. A nurse was in the room almost the entire time and no improper advances or comments were made. The examination and discourse afterward were uneventful. Although, she told him that she was still upset about what happened. He didn't respond. L. I. never returned to Dr. Lieberman or to any other gynecologist. In March 1983, L. I. began seeing a mental health counselor through her employee assistance program when she was having trouble with one of her children. At some point in the counseling process, L. I. began discussing her experience with Dr. Lieberman. As a result of the counseling she gained some insight into her own reactions to the incident. She is intimidated easily and is compliant. She tries to let things go and handle matters in her own way. In his testimony at hearing, Dr. Lieberman agreed that L. I. was reticent and a subdued and submissive type of individual. (Transcript, Vol. IV, P. 138.) She obtained legal counsel civil brought a civil suit against Dr. Lieberman, which suit has since been settled. D. B. D. B. was a patient of Dr. Lieberman from June 1978 until September 1981. She first became his patient when he was the OB/GYN physician on call at Florida Hospital where she had been referred by a family practitioner. He performed emergency surgery, and she continued to see him on a regular basis for routine check-ups and a variety of gynecological services, including two abortions, treatment for infections, and birth control. On September 1, 1981, D. B. visited Dr. Lieberman's office for the purpose of being fitted for a diaphragm, a birth control device. At the instructions of the nurse, D. B. completely disrobed, and draped the paper vest and sheet. She was sitting on the examining table when Dr. Lieberman entered the examining room. They exchanged brief pleasantries with regard to his having been up all night delivering babies. He then approached her, attempted to push her down on the table, and french kissed her while fondling her left breast. She resisted physically by pushing forward, and the incident lasted only ten to fifteen seconds. As he wiped lipstick from his mouth, he told her that she wasn't cheating on her husband. She dressed, left the office and returned to her own office. (Transcript, Vol. I, pp. 52-58.) At the office she talked to a friend who suggested that she do something. The friend called the police and arrangements were made for her to meet them at her apartment. After she made her report to the police, D. B. was contacted by a female police detective, Sgt. Alana Hunter. D. B. decided not to press charges because she had two abortions prior to her marriage and had never told her husband. She was told that the abortions might be disclosed during the prosecution. She later retained the services of an attorney and a civil action is pending. B. J. B. J. was an OB/GYN patient of Dr. Lieberman from September 1979 until May 1984. Her medical care and treatment by Dr. Lieberman included obstetrical deliveries in June 1980 and November 1982, with intervening gynecological care. Part of that care included a test called a Pap smear. This procedure involves the taking of a sample of cells from the patient's cervix which sample is sent to a laboratory for a cytological/pathological examination to determine the presence of abnormal, precancerous or cancerous cells. It is a routine gynecological procedure with the primary purpose of early detection of cancer. The findings of examination of a Pap smear are reported in levels, ranging from I, which is considered normal; to II, considered abnormal or denoting inflamed or damaged cells; to III, inferring cancerous consideration; to IV and V, where carcinoma is more clear and definite. B. J. had Pap smears taken by Dr. Lieberman on September 26, 1979; June 23, 1980; December 18, 1980; July 28, 1981; and May 7, 1982 -- all Class I, although the laboratory reports for the latter three tests noted mild and moderate inflammation. On December 21, 1982, her Pap result was Class II. She was treated with a vaginal suppository and was appropriately directed to return for a follow-up test in one month. The repeat test on January 25, 1983, was still Class II. On February 8, 1983, Dr. Lieberman performed a cryocauterization of B. J.'s cervix. This is an office procedure involving the use of a probe-like instrument which is inserted flush up against the cervix. Nitrous oxide is released to the probe, freezing the atypical cells. This results in a discharge over the next six to eight weeks, during which time the entire surface of the cervix is sloughed away. Dr. Lieberman next saw B. J. on September 14, 1983, when another Pap smear was taken. This returned from the laboratory as a Class I. At that point he was satisfied that the cryocauterization had been successful. Sometime between September 1983 and February 1984, B. J. began experiencing bleeding during and after intercourse. She returned to Dr. Lieberman with that complaint on February 23, 1984. He found the cervix bled when touched and he took another Pap smear. This test returned as a Class II. Since he felt that the procedure had worked in the past, Dr. Lieberman performed another cryocautery procedure on B. J. on March 8, 1984. On May 8, 1984, she came back to his office still complaining of bleeding. Her cervix appeared beefy red and Dr. Lieberman saw very small points of bleeding. He applied a coagulent to attempt to stop the bleeding. She returned two days later and more coagulent was applied to her cervix. On May 30, 1984, Dr. Lieberman applied hot cauterization to her cervix. B. J. never returned for further treatment from Dr. Lieberman. Instead, B. J. changed her Health Maintenance Organization (HMO) family practitioner and was referred to another OB/GYN physician, Dr. Grace Sarvotham. During her pelvic examination B. J. bled profusely and was referred to Dr. Robert DeMaio, a Board-certified OB/GYN, practicing in Winter Park, Florida. Dr. DeMaio examined B. J. on September 5, 1984. Utilizing a colposcope, which is a microscope-type instrument, to magnify the cervix, he found areas of abnormal blood vessels and abnormal white epithelium. Because of these abnormalities, he took a biopsy. The report on the biopsy was returned on September 6, 1984, with the finding exophytic squamous cell carcinoma -- in lay terms, cancer of the cervix that had shown evidence of spread. B. J. was referred to Dr. Thomas Castaldo, a gynecological oncologist, who admitted her for surgery on September 17, 1984, and performed a radical abdominal hysterectomy and bilateral pelvic node dissection. That means her uterus and cervix were removed, along with the supporting tissues and pelvic lymph nodes. She is still being followed by Dr. Castaldo and has received radiation therapy from Dr. John Looper, a Board-certified radiation oncologist in Orlando, Florida. Dr. Lieberman claims that by May 1984, he was beginning to feel that a biopsy should be done on B. J.'s cervix. This procedure involves the surgical removal of a small amount of tissue and its examination under a microscope. He was familiar with this procedure and was trained in it, as well as in the cotoposcopy procedure utilized by Dr. DeMaio. Except with a Class V Pap smear, which undeniably indicates cancer, a diagnosis cannot be made from a Pap smear. The abnormalities or inflammations noted with a Class II Pap smear are symptoms of some condition which must be diagnosed before they are treated. Dr. Lieberman's use of the cautery procedures prior to diagnosis served to temporarily mask the symptoms. His failure to diagnose B. J.'s condition prior to treatment, or to rule out cancer or precancerous condition was a departure from the standards of acceptable and prevailing medical practice. SUMMARY OF FINDINGS One of the most sensitive but essential functions of a fact finder is the resolution of conflicting testimony by weighing the credibility of witnesses. Disposition of the issues in this case involves almost exclusively that function. M. A.'s rambling and confused account of her life as a drug abuser in the 1970's, indiscriminately consuming vast quantities of controlled substances, was either zealous hyperbole or a candid revelation of her tortured former existence and mental state. Neither construction recommends the credibility of her allegations of Dr. Lieberman's wrongdoing. The agency failed to prove the specifics of those allegations. There were a few prescriptions, some of which were never recorded in Dr. Lieberman's office notes for this patient, contrary to his avowed practice. But those prescriptions in no way fully corroborated M. A.'s testimony. Likewise, the expert opinions based on review of office notes, medical records and the prescription forms were too equivocal to outweigh contrary opinions offered by Dr. Lieberman's experts. L. I. and D. B., in contrast, were convincing and competent witnesses. L. I. credibly explained how she could return twice to the scene of her rape. Her unwillingness to immediately report the incidents was also explained. D. B. stated at hearing that she did not receive any treatment in Dr. Lieberman's office on September 1, 1981. In an earlier, out-of-hearing statement, she established that she had been fitted with a diaphragm during the visit and prior to Dr. Lieberman's untoward conduct. The earlier statement is consistent with the office notes in records maintained by Dr. Lieberman. The inconsistent statements do not, however, impeach her allegation that Dr. Lieberman kissed and fondled her on that occasion. Dr. Lieberman claims that he has no independent recollection of the visits by these patients on the dates in question. He denies that he is a violent person who could have assaulted these women. Although sexual assaults are generally considered acts of violence, in these instances little force was required. He had established a relationship of trust and took advantage of that trust. His testimony that coitus is anatomically impossible with the woman in a seated position, likewise begs the question. L. I. described her position as seated on the examining table with her legs dropped, when the extension of the table was dropped by Dr. Lieberman. He positioned her, as she described, with his arm around her buttocks, moving her forward. A simple rotation of the anatomical chart, received in evidence as Respondent's Exhibit 12, demonstrates how entry could have been accomplished under those circumstances. Uncontroverted expert testimony established that the sexual activities by Dr. Lieberman with L. I. and D. B. were outside the scope of generally accepted examination or treatment of a patient. With regard to Patient B. J., the solid weight of expert evidence established that the failure to obtain appropriate tests was an unacceptable deviation from the standards of reasonable medical care. The wrongdoing was not, as argued by counsel for Respondent, the failure to diagnose B. J.'s cancer. The violation was the persistent treatment of symptoms whose etiology had not been established. The testimony of Dr. William Russell, one of Respondent's experts, regarding the use of Pap smears in the detection of cancer, was informative, but his opinion that a colposcopy or biopsy of B. J.'s cervix during Dr. Lieberman's treatment was unnecessary is not persuasive in the face of the overwhelming competent evidence presented by the agency's witnesses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered by the Board of Medicine finding Robert A. Lieberman, M.D., guilty of sexual misconduct in the practice of medicine and failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and revoking his license to practice medicine. DONE and ENTERED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of April, 1989. APPENDIX Subsection 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the order must include a ruling on each. Counsel for Petitioner submitted a 101-page "proposed recommended order", with 599 separately numbered paragraphs styled "proposed findings of fact". The vast majority of these paragraphs are not proposed findings of fact, but rather are a summary statement of testimony of the witnesses, taken from the transcript of hearing and the two depositions of Petitioner's experts. The statements are not organized by issue or subject matter but faithfully follow the order in which the testimony was given at hearing. Although these statements have been read, no rulings need be made. Any rulings would be mere commentary on the testimony as summarized by Petitioner. Specific Rulings on Respondent's Proposed Findings of Fact (Case NO. 88-3333) Adopted in paragraph 1. Adopted in paragraphs 2 and 3. Adopted in paragraph 2. Adopted in paragraphs 4, 14 and 23, with the exception of the last sentence which is not addressed in the record. Adopted in substance in paragraph 4. Adopted in summary in paragraph 5, except that the number of months is 15, not 12. 7.-9. Adopted in summary in paragraph 10. 10.-12. Rejected as unnecessary. 13.-17. Adopted in summary in paragraph 6. 18.-45. Adopted in summary in paragraphs 5, 7 and 10. 46.-53. Rejected as unnecessary. 54. Adopted in substance in paragraph 4. 55.-60. Rejected as unnecessary. 61.-62. Adopted in paragraph 23. 63. Adopted in paragraph 24. 64.-65. Rejected as unnecessary 66. Adopted in paragraph 24. 67.-69. Rejected as unnecessary. Adopted in paragraph 43. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. 74.-75. Rejected as unnecessary. 76. Adopted in paragraphs 18 and 19, except that the record does not establish that a pelvic examina- tion was conducted on July 20, 1982. (Case NO. 88-3334) 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2 and 3. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraphs 37 and 39. Adopted in paragraph 39. Adopted in paragraph 31. Adopted in paragraph 31, except that the record established that the condition is not unusual after a vaginal delivery. B. J.'s delivery was a Caesarean section. 11.-12. Adopted by implication in paragraphs 30 and 31. Adopted in paragraph 31. Rejected as contrary to the weight of evidence. Adopted in paragraph 32. Rejected as unnecessary. Adopted in paragraph 33. Rejected as unnecessary, but still implied in the finding in paragraph 34. 19.-21. Adopted in paragraph 34. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 35. 25.-26. Adopted in summary in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. 29.-30. Rejected as unnecessary, except the fact that she underwent radiation therapy, addressed in paragraph 38. COPIES FURNISHED: PETER FLEITMAN, ESQUIRE ONE DATRAN CENTER, SUITE 1409 9100 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156 THOMAS M. BURKE, ESQUIRE RICHARD A. SOLOMON, ESQUIRE 11 EAST PINE STREET POST OFFICE BOX 1873 ORLANDO, FLORIDA 32802 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2006). At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number ME 90545, and certified by the American Board of Internal Medicine. Beginning in 2005, the Respondent owned, and practiced medicine at, the Jude Medical Clinic, 2700 East Bay Drive, Largo, Florida. His wife worked at the clinic as the office manager. The patients specifically referenced herein were clients of Pinellas County Health Services (CHS), an agency that provided access to medical care for low-income residents. CHS apparently paid for some, but not all, medical services and tests. CHS clients selected primary care physicians from a referral list maintained by CHS. The Respondent was a primary care physician who participated in the referral program and accepted CHS clients as patients. Prior to opening the clinic, the Respondent practiced medicine at the Bay Pines VA Medical Center (Bay Pines) in St. Petersburg, Florida, and, for a period of time, he continued to practice at both. The Respondent employed a female nurse at the clinic, with whom he also worked at Bay Pines. Routine practice at Bay Pines required a female to be present in the exam room when a male physician performed a medical exam on a female patient. The Respondent adopted the same practice for the clinic's female patients. Clinic patients were escorted into an exam room by either the nurse or the Respondent's wife. The other female would leave the room to address other responsibilities while the Respondent conducted the medical history interview, recording the information in his notes. The nurse generally recorded the patient's vital signs prior to the interview, although the Respondent did so when the nurse was absent from work. After the interview was completed, the nurse or the Respondent's wife would enter the room and remain during the physical exam. Patient J.R. On August 9, 2007, Patient J.R. presented to the Respondent's office for her initial visit with complaints of neck and back pain. The Respondent interviewed Patient J.R. and conducted a complete medical exam on August 9, 2007. There was no evidence that the exam was unwarranted. The interview and exam were documented by medical records admitted into evidence at the hearing. The exam included a breast exam. The medical records document the size and location of a lesion on her left breast. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. Prior to the exam, the clinic's nurse escorted the patient into the exam room and recorded vital signs. The clinic's nurse was present in the room during the exam. At one point during the exam, the Respondent's wife also entered the exam room. After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for medication, which the patient filled. He also scheduled a follow-up appointment, which the patient did not keep. At the time of the initial visit, the patient was taking a significant amount of medication for chronic pain, and she requested that the Respondent provide a prescription for pain medication. He declined to comply with her request. Patient J.R. testified at the hearing that the Respondent fondled her breasts for approximately 15 minutes with no one else present in the exam room at the time. She also testified that the Respondent performed no physical exam during the office visit. The patient's testimony was contrary to the greater weight of the evidence and has not been credited. Patient W.S. On October 15, 2007, Patient W.S. presented to the Respondent's office for her initial visit with complaints of back and leg pain. The patient also suffered from Crohn's Disease and had burns to the skin on the backs of her thighs. She attributed the burns to use of a heating pad. The patient was taking various prescription medications, including pain relievers, at the time of the office visit. The Respondent interviewed Patient W.S. and conducted a complete medical exam, including a neurological exam, on October 15, 2007. There was no evidence that the exam was unwarranted or otherwise inappropriate. The interview and exam were documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. Because the clinic's nurse was absent on October 15, the Respondent's wife entered the room at the time of the physical exam and was present throughout the exam. The Respondent took the patient's vital signs. Upon the conclusion of the exam, the Respondent left the room prior to both the patient and his wife. After completing the physical exam, the Respondent ordered an MRI to address the patient's complaint of pain and ordered lab tests for the patient. He gave the patient a prescription for antibiotic medication for the burns to her thighs and a prescription for a muscle relaxant to address her pain. He also referred her to a gastroenterologist for treatment of the Crohn's Disease. The patient completed the MRI test and filled the medication prescriptions. She also saw a gastroenterologist for her Crohn's Disease, although not the one to whom she was referred by the Respondent. At the hearing, Patient W.S. testified that the Respondent examined her spine by rubbing his hand down her back, during which she emitted a sound of pain, and that the Respondent said, "Don't do that, it makes me think you are horny." She also testified that the Respondent used excessive force when striking her knees with a reflex instrument and said "See what happens when you piss your doctor off." The testimony was not supported by the greater weight of the evidence, and it has not been credited. Allegations related to improper use of a "business or index card" during a neurological exam were withdrawn prior to the hearing. Patient E.S. On February 25, 2008, Patient E.S. presented to the Respondent's office for a follow-up to an initial visit on January 16, 2008. Upon arriving at the clinic for the follow-up, she complained of chest pain and "heaviness" and was immediately taken to an exam room by the nurse. The nurse took the patient's vital signs and retrieved an EKG machine. The nurse placed the EKG machine leads on the patient's chest and performed the test. The test results were within normal limits. The Respondent was not present in the room at the time of the EKG test. After completing the test, the nurse located the Respondent in his office and reported the information to him, and both the nurse and the Respondent went to the exam room. The Respondent advised the patient that the EKG test was normal. The Respondent then discussed the results of lab tests that had been performed after the January appointment. The patient's tests results reported the presence of a urinary tract infection (UTI) and specified that the identified bacteria "may represent colonizers from external and internal genitalia." Based upon the reported source of the bacteria identified as responsible for the UTI, the Respondent discussed sanitary cleansing practices with the patient during the exam. At the conclusion of the appointment, the Respondent referred the patient for cardiac stress testing, prescribed an antibiotic for the UTI, and ordered additional lab tests. The Respondent left the exam room prior to both the patient and the nurse. The nurse removed the EKG leads from the patient's chest. The patient filled the prescription and went to the lab as directed by the Respondent. The patient's office visit on February 25, 2008, was documented by medical records admitted into evidence at the hearing. There was no evidence that the medical records were not created contemporaneously with the physical exam of the patient. There was no evidence that the Respondent's interaction with Patient E.S. was inappropriate or unwarranted based upon the information available to the Respondent from test results or obtained during the patient's initial clinic appointment. At the hearing, Patient E.S. testified that the Respondent performed the EKG and that no one else was present at the time. The testimony was contrary to the greater weight of the evidence and has not been credited. Patient E.S. testified that after telling her about the UTI, he told her to "lay off the sex." There was no credible evidence presented that providing such advice to a patient with an active UTI was improper or constituted sexual misconduct. Patient E.S. also testified that the Respondent pulled down her underwear, and, using an ungloved finger, touched her clitoris and inserted his finger into her vagina, while identifying each. The testimony was contrary to the greater weight of the evidence and has not been credited. The Administrative Complaint alleged that, at the time of the initial visit, the Respondent told the patient she needed a pap smear test and that one could be provided for her payment of $50 "under the table." At the hearing, the Respondent denied making the statement, but testified without contradiction that the CHS did not pay for pap smear tests and that patients were required to pay the expense of the test. There was no evidence that such a statement, even assuming it were made, constituted sexual misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint filed against Kayode Ezekiel Sotonwa, M.D. DONE AND ENTERED this 25th day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 September, 2009. COPIES FURNISHED: Shirley L. Bates, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kory J. Ickler, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Suite 200 Post Office Box 10095 Tallahassee, Florida 32302-2095 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x), Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
Findings Of Fact At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965. Patient L. H. From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week. L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred. L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time. The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive. Patient S.P. Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon. S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise. S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive. Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing. Patient L. M. Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly. Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts. Patient K. M. Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with K. M.'s testimony at final hearing, but that consistency does not enhance K. M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing. Patient L. G. L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan. After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help. The consistency of the testimony does not make it persuasive. Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent. DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 22rd day of May, 1989. APPENDIX The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on Findings of Fact Proposed by the Department of Professional Regulation Covered in finding of fact 1. Covered in finding of fact 1. Accepted in findings of fact 2, 6, 10, 11 and 12. Covered in finding of fact 11. 6-7. Rejected for the reasons stated in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 11. 13 Covered in finding of fact 6. Covered in finding of fact 7, of the facts stated that are rejected. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Rejected as subordinate to finding of fact 9. Rejected as subordinate to finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary. Rejected as unnecessary. 26.-29. To the extent necessary, covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 12. Rejected as unnecessary. Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing. Rejected as unnecessary. Rejected because the testimony of L.G. is not clearly convincing. Rejected as unnecessary. 37.-38. To the extent necessary, covered in finding of fact 13. 39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. Rejected because of the testimony of the complaining witnesses has not been clearly convincing. 50.-53. Rejected as unnecessary. 54. Rejected as unnecessary. Rulings on Findings of Fact Proposed By Dr. Wise Rejected as unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2 Covered in finding of fact 4. Covered in finding of fact 5. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 8. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. Covered in finding of fact 12, to the extent necessary. Covered in finding of fact 14. Covered in finding of fact 10. Covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 10. Rejected as unnecessary. COPIES FURNISHED: Susan Sewell, Esquire Law offices of Mark P. Lang 20 North Orange Avenue Suite 707 Post Office Box 2127 Orlando, FL 32802-2127 Jonathan King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 130 North Monroe Street Tallahassee, FL 32399-0750A =================================================================
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(j), 458.331(t), and 458.331(1)(x), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0043763. The Respondent specializes in general medicine and is not board certified. On November 25, 1996, patient A. J., a 28-year-old female, presented to the Respondent for the purpose of having a physical examination performed by a physician. The patient A. J. sought the physical examination for the purpose of complying with requirements of the Immigration and Naturalization Service ("INS"). The patient A. J. brought with her an INS physical examination form. The form included instructions to the person to be examined, as well as instructions to the physician who would perform the examination. The instructions to the person to be examined included: "The doctor will examine you for certain physical and mental health conditions. You will have to take off your clothes." The instructions to the physician performing the examination included the following: Please medically examine for adjustment of status the individual presenting this form. The medical examination should be performed according to the U. S. Public Health Service "Guidelines for Medical Examination of Aliens in the United States" and Supplements, which have been provided to you separately. The Respondent was familiar with the INS guidelines for medical examination of aliens in the United States, because he had previously performed such examinations on numerous occasions, and he was a physician who had been approved by the INS to perform such examinations. At the time of the examination of the patient A. J., those guidelines were incorporated in a document titled Technical Instructions for Medical Examination of Aliens in the United States, dated June 1991. At page I-1, the technical instructions included the following in a description of the role of the civil surgeon: The civil surgeon is responsible for reporting the results of the medical examination and all required tests on the prescribed forms. The civil surgeon is not responsible for determining whether an alien is actually eligible for adjustment of status; that determination is made by the INS officer after reviewing all records, including the report of the medical examination. (Emphasis added.) At page II-2 the technical instructions included the following description of the required physical examination: d. a physical examination, including an evaluation of mental status, sufficient to permit a determination of the presence and the severity of Class A and Class B conditions. The physical examination is to include a mental status examination that includes, at a minimum, assessment of intelligence, thought, cognition (comprehension), judgment, affect (and mood), and behavior. a physical examination that includes, at a minimum, examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia. all diagnostic tests required for the diagnosis of the diseases identified as communicable diseases of public health significance and other tests identified as necessary to confirm a suspected diagnosis of any other Class A or Class B condition. At all times material to this case, for purposes of INS physical examinations, Class A conditions were: Chancroid, Chronic alcoholism, Gonorrhea, Granuloma inguinale, Hansen's disease (infectious), HIV infection, Insanity, Lymphogranuloma venereum, Mental defect, Mental retardation, Narcotic drug addiction, Previous occurrence of one or more attacks of insanity, Psychopathic personality, Sexual deviation, Syphilis (infectious), and Tuberculosis (active). Class B conditions were: Hansen's disease (not infectious), Tuberculosis (not active), and "Other physical defect, disease or disability." At page II-2, the technical instructions clarified that: "The responsibility of the civil surgeon is only to conduct the examination and testing required to determine the alien's status regarding Class A and Class B conditions and to complete the medical report form. . . . If the alien needs further evaluation or treatment for conditions not relevant to the medical examination, the physician should advise the alien of this and should make recommendations for appropriate diagnostic evaluation and treatment." The patient A. J. had an appointment for 5:00 p.m. She had requested a late afternoon appointment to minimize the time she would miss from her work. When the patient A. J. arrived at the Respondent's office, the Respondent was the only other person present in the office. During the entire time that the patient A. J. was in the Respondent's office on November 25, 1996, the only people in the office were the patient A. J. and the Respondent. Upon her arrival, the Respondent took the patient A. J. to an office, where she filled out some paperwork, including her name, address, and telephone number. The Respondent inquired as to exactly where on her street her residence was located. The Respondent made repeated inquiries about the location of the patient's residence and even asked the patient to draw a map to her residence. The Respondent asked the Patient A. J. if he could stop by her house sometime. The patient A. J. said, "No." The Respondent also asked the patient A. J. if she was married and if her marriage was "real." After finishing the paper work, the Respondent took the patient A. J. into a laboratory room, where he drew blood for two of the tests, and also administered the agent for the skin test for tuberculosis. The Respondent then took the patient A. J. to an examination room, gave her a gown, and instructed her to remove her clothing. The patient A. J. inquired as to whether she should remove her underpants. The Respondent replied, "Only if you want me to do a pelvic." The patient A. J. thereupon told the Respondent that she was due for a PAP test and that she needed birth control pills. The Respondent told the patient A. J. that it would be a good idea for her to start using birth control pills, in case she wanted to do anything while her husband was not around, because the pills would be added protection against pregnancy. The patient A. J. told the Respondent that she did not sleep around, to which he replied, "You can never tell what will happen." During the entire time the patient A. J. was in the Respondent's office, there was music playing in the office. The physical examination included an examination of the patient's breasts. While examining the patient's breasts, the Respondent sang along with the music. The Respondent also commented to the patient A. J. that the singer on the background music, Luther Vandross, was the greatest love song singer of all time. Following the examination that was required by the INS, the Respondent performed an internal pelvic examination of the patient A. J. This was an examination that involved the insertion of instrumentation and the insertion of the doctor's fingers into the vagina of the patient. The Respondent took an excessive amount of time in performing the internal pelvic examination. During the course of the internal pelvic examination, the Respondent told the patient A. J. that she had a heavy discharge. He then proceeded to ask her how often she became sexually aroused and how easily she became sexually aroused. During the course of the internal pelvic examination the patient A. J. became worried and asked the Respondent if the two of them were the only people in the office. The Respondent replied in the affirmative. The patient then began to feel afraid when it was confirmed that she was alone with the Respondent. Her fear arose from the fact that she was alone with a physician who had been making what she considered to be inappropriate comments and questions about her marriage, her affairs, and her sexual arousal. The internal pelvic examination of the patient A. J. was not required by the INS. The Respondent would not have conducted an internal pelvic examination of A. J. if she had not requested that such an internal examination be performed. The specific reasons for which A. J. requested, and consented to, an internal pelvic examination was to have a PAP smear performed and to determine if she had any condition that would contra-indicate the use of birth control pills. The patient A. J. believed that a physician could not, or would not, prescribe birth control pills without first conducting a PAP smear and an internal pelvic examination. The patient was correct in this belief. Acceptable standards of medical practice mandate that a physician perform a PAP smear and conduct an internal pelvic examination prior to prescribing birth control pills to a patient. If the Respondent was not going to perform a PAP smear and was not going to prescribe birth control pills, there was no reason for him to perform an internal pelvic examination of the patient A. J. During the course of the internal pelvic examination, the Respondent did not do a PAP smear of the patient A. J. The Respondent also refused to prescribe birth control pills for the patient A. J. When the patient repeated her request for a prescription for birth control pills, the Respondent replied that he could not prescribe the birth control pills for "personal reasons." When the patient inquired as to what he meant by "personal reasons," the Respondent said that he did not want to establish a doctor/patient relationship with the Respondent "because you can never tell what the future might bring." The Respondent also said to the patient A. J. that "in the future we might get involved," and he went on to explain that if that were to be the case, he could get in trouble if he were to be her doctor. The Respondent also told the patient A. J. that she was "too charming" to be his patient, and mentioned again that he didn't want to prescribe the birth control pills for her "because he didn't know if in the future we might have an affair," and for that reason he did not want to get into a doctor/patient relationship with the patient A. J. During a discussion following the examination, the Respondent asked the patient A. J. to return the following Friday (the day after Thanksgiving) to obtain the results of her blood tests and to have her skin test read. The patient told the Respondent she had plans for the long weekend and asked if she could return on Wednesday. The Respondent agreed that she could return on Wednesday. He also inquired about her weekend plans. The patient A. J. told the Respondent that she was going on a fishing trip with a girlfriend. Thereupon the Respondent asked the patient if she would go fishing with him sometime. He went on to mention that someone had given him some new fishing equipment that he had never had a chance to use. When patient A. J. asked how much she owed for the examination, the Respondent replied, "the cost is usually $2,000.00, but for you it will only be $120.00." As the patient A. J. was exiting the Respondent's office, the Respondent followed her out to her car. The patient had not asked the Respondent to escort her to her car and his presence made her nervous because she did not know his purpose in following her out to the car. As a result of the Respondent's comments and conduct, the patient A. J., in her words, "felt violated." The patient felt that many of the Respondent's comments and questions were inappropriately personal. She also felt that the Respondent had taken advantage of her by conducting an internal pelvic examination for the purported purpose of performing a PAP smear and determining if there was any condition that contra-indicated her use of birth control pills, and then not performing a PAP smear and not prescribing birth control pills because of the Respondent's interest in the possibility that they might have a future affair. Two days later, on Wednesday, November 27, 1996, the patient A. J. returned to the Respondent's office for the purpose of obtaining the results of the blood tests and to have her skin test read. On this occasion the patient was not alone with the Respondent at any time and she had only minimal contact with him. The Respondent did notice that the patient seemed to have a hostile attitude. On Friday, November 28, 1996, the Respondent called the home telephone number of the patient A. J. The patient was home, but she did not answer the telephone. The Respondent left a message on the patient's answering machine to the effect that he was just calling to "touch base" and that he would call her again later. There was no medical purpose for the telephone call. The comments and questions the Respondent made to the patient A. J. regarding such matters as whether her marriage was real, commenting that she was charming, asking her to go fishing with him, suggesting the possibility of a future affair, requesting a map to her house, asking if he could come visit her, and asking about her sexual arousal, all constitute inappropriate and unacceptable conversation by a physician to a patient. Comments and questions of this nature may reasonably be interpreted by the patient as being sexual in nature. It is a departure from accepted standards of medical practice for a physician to perform an internal pelvic examination on a patient without also having a third person in the examination room. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an internal pelvic examination on a patient without also having a third person in the examination room. It is a departure from accepted standards of medical practice for a physician to perform an unnecessary internal pelvic examination on a patient. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an unnecessary internal pelvic examination on a patient.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing the charge in Count Three of the Administrative Complaint; Concluding that the Respondent has violated Sections 458.331(1)(j) and 458.331(1)(t), Florida Statutes, as charged in Counts One and Two of the Administrative Complaint, and Imposing a penalty for those violations consisting of (a) a letter of reprimand, (b) an administrative fine in the amount of $5,000.00, (c) suspension of the Respondent's license for a period of one year, and (d) placement of the Respondent on probation for a period of one year immediately following the period of suspension, with probation terms to be established by the Board of Medicine. Further, during the period of suspension, the Respondent should be required to attend courses to be determined by the Board of Medicine covering the subject matters of the patient-physician relationship and medical ethics. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.
