The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Lewis J. McLean, through sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on January 18, 1982, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. Final hearing in this case was conducted on April 2, 1982, following a continuance of the originally scheduled hearing date of February 25, 1982, which continuance was granted to the Petitioner to allow him to attempt the employment of counsel to represent him in this action. In the course of the final hearing, the Petitioner testified in his own behalf. Respondent offered as witnesses: Robert Alcorn, Clinical Director, Mentally Disordered Sex Offender Program at Florida State Hospital, and Charles Schaefer, Clinical Psychologist. Respondent submitted two (2) items of evidence which were received. At all times pertinent to this proceeding, Petitioner has been in the custody of Respondent, in keeping with the court order. His commitment has been on the basis of Chapter 917, Florida Statutes (1977), involving Lewd and Lascivious and Indecent Assault or Act upon a child under the age of fourteen (14) related to the handling, fondling or making an assault upon that child, without the intent to commit sexual battery, by committing fellatio on the victim. The commitment order to the program dates from May 23, 1979, and the Petitioner was placed in the Forensic Service, Mentally Disordered Sex Offender Unit at Florida State Hospital on July 30, 1979. During his stay at Florida State Hospital, the Petitioner has undergone treatment in the program for the benefit of sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in dealing with the underlying disorder, Pedophelia, has reached a place where improvement is no longer expected by the patient. In the face of these circumstances, Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer opportunities for progress. Those opinions having been made known to the Petitioner, Petitioner requested and was granted the hearing which lead to the entry of the Recommended Order. The program at Florida State Hospital has as its main focus the utilization of group therapy with adjunctive programs in recreation and occupational therapy, and this treatment regimen relies heavily on a patient's self-motivation. Respondent's Exhibit 1, admitted into evidence, is constituted of a series of clinical summaries related to the patient's performance during the course of his treatment at Florida State Hospital. The most recent of these summary statements was prepared from the session of November 18, 1981. In brief, the opinions stated in the clinical summaries accurately indicate that the Florida State Hospital has exhausted all available treatment for the Petitioner's Pedophilia. Moreover, the presentation of Petitioner's case to the Intra-Departmental Screening Committee, which is constituted of administrative personnel of the various sex offender programs in the State of Florida, correctly concluded that the Respondent has exhausted all available treatment for the Petitioner in any program in the State of Florida. Finally, testimony given in the course of the hearing was in keeping with the opinions expressed in the clinical summaries and the opinions held by the members of the Intra- Departmental Screening Committee. Notwithstanding the efforts of the Respondent, Petitioner continues to meet the definition of sex offender as set forth in Chapter 917, Florida Statutes, to include the propensity to commit further sexual offenses of the nature for which he was placed in the Sex Offender Program. Charles Schaefer became the Petitioner's primary therapist in August, 1981, and has continued to perform that function. Schaefer's testimony establishes that Petitioner's stay in the program, in terms of duration, has been average. Schaefer continues to meet with the Petitioner in group therapy sessions, which sessions are the primary focus of the treatment modality. These sessions occur four (4) times a week and the patients within those sessions, through discussion, are primarily responsible for bringing about an understanding of the underlying disorder which caused their placement in the program. In addition, McLean has participated in individual therapy sessions with Schaefer and in adjunctive therapy, in particular small engine repair. At the time that Schaefer undertook the care of Petitioner as primary therapist, he reviewed the past clinical reports and matters of record on file at Florida State Hospital and noted that those reports indicated that Petitioner was superficial in his understanding of his sexual deviation and had little or no insight into why he had committed the offense which caused his placement. These recorded observations were accurate in outlining Petitioner's condition. Over the period of time of his attendance in group sessions with Schaefer, Petitioner has ceased bringing his problems to the group therapy sessions to discuss them with others and his problems were only discussed in group, based upon other members within the group learning of those problems by conversations held with Petitioner while on the ward and carrying forward the topics at group sessions. This form of ward discussion is not designed and will not achieve improvement in Petitioner's understanding of his sexual deviation. Moreover, Petitioner tends, in the course of the group sessions, to minimize the severity of his problems and is more motivated toward being relieved of the responsibility of dealing with the problem and being removed from those sessions, as opposed to attempting to understand and deal with his aberrant life style. Schaefer, in his attempts to assist the Petitioner, tried an approach which gave the Petitioner great latitude to find a way to discuss the patient's problem. This method was followed by a more confrontive style of working with Petitioner. Neither of these choices was successful and the Petitioner has continued to be evasive, silent in group therapy sessions and has only talked in those sessions when confronted with a direct question. On those occasions, McLean gives answers which are short and uninformative. Schaefer has taken McLean out of the patient volunteer work program as a means to achieve better performance in group therapy sessions. This form of motivation has not borne a better result in terms of participation. Neither has the attempt to have individual therapy sessions once a week lead to any better result. In those individual therapy sessions with Schaefer, Petitioner has not talked. Recently, McLean has been dealt with only through the group therapy sessions and no progress has been made in dealing with his condition. It is only on a couple of occasions within the last nine (9) months that McLean has been forthright in his discussion of his condition. As can be seen in the Respondent's Exhibit 1, admitted into evidence, in the November, 1981, staffing conference, to consider the question of his retention in the program, Petitioner stated that he knew that he needed more help and felt that he could benefit from another six (6) months' stay in the hospital so that he could become a former sex offender and not be felt to meet the criteria related to sex offenders. At present, McLean seems satisfied with his personality as it now exists. That personality allows him to perform in an acceptable fashion on the hospital ward and in the adjunctive therapy involvement; however, he would not be appropriate in a social circumstance which gave the Petitioner opportunity to commit a further sexual offense. Robert Alcorn, the Unit Director at Florida State Hospital, in charge of the Sex Offender Program, indicated that the McLean case had been presented to the Intra-Departmental Screening Committee described herein. This was done on December 31, 1981, and as indicated in Respondent's Exhibit 2, it was the opinion of all administrative officials in the various programs that Respondent had exhausted treatment for McLean's condition. McLean, through his testimony in the course of the hearing, indicated that he feels that he has done his best and that he tries to express himself on the subject of his Pedophilic condition. Nonetheless, he feels that he has a problem discussing those matters in a group setting and that he is uncomfortable talking to members of the group. He does feel that he has brought some problems to the group discussion. In his mind, the reason that he committed the crime for which he was placed in the program, was based upon his tendency to "keep everything in" and his difficulty communicating with his wives. He does not feel that he will commit a sex offense in the future and that he could address his problems by talking to a marriage counselor or someone of that nature. He feels that he is well, but he would like to stay in the program if it is determined that he is not ready to be released. In summary, the Respondent has exhausted all appropriate treatment for this Petitioner's sexual disorder, but that treatment has not been successful and the patient continues to suffer from that condition and continues to pose a danger to commit another sex offense.
The Issue The issues in this case, as set forth in the Prehearing Stipulation, are as follows: Whether Respondent was terminated from the State Medicaid Program; [Case No. 14-2488, Count I] Whether Respondent failed to update his practitioner profile within fifteen days of the filing of the order terminating him from the State Medicaid Program; [Case No. 14-2488, Count II] Whether Respondent exercised influence within the patient-physician relationship with T.J.[1/] for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with T.J.; [Case No. 14-1342, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with M.B. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with M.B.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with C.J. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with C.J.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with D.K. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with D.K.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with A.H. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with A.H.; [Case No. 14-1343, Counts I & II] and Whether Respondent exercised influence within the patient-physician relationship with S.D. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with S.D. [Case No. 14-1343, Counts I & II]
Findings Of Fact Petitioner, Department of Health, Board of Medicine (the “Department”) is the State agency responsible for licensing and monitoring physicians in the State of Florida. The Department regulates the practice of medicine in accordance with section 20.43 and chapters 456 and 458, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification. Respondent is a licensed Florida physician, certified in the area of pain management, holding license number ME 97134. At all times relevant hereto, Respondent was practicing medicine at one of two locations: the Back Authority for Contemporary Knowledge, (a pain management clinic known as the “Back Center” located in Melbourne, Florida); and Advantacare (in its Altamonte Springs and Daytona Beach offices). Respondent was employed at the Back Center from January 2008 through September 2011, and at Advantacare from March 2012 through April 2013. Respondent provided pain management services for numerous patients during his tenure at each of the clinics. While at the Back Center, he saw 50 to 60 patients per day in an 8-hour workday, doing about 15 medication injections per day. At Advantacare he was seeing about 30 patients per day. By all accounts, Respondent is a skilled and proficient pain management physician. At Advantacare, Respondent would see patients for regular office visits at the Altamonte Springs office on Monday, Tuesday, Thursday, and Friday; Wednesday would be set aside for administering injections under a fluoroscope, described as sort of a C-shaped X-ray machine, performed at the Daytona Beach office. None of the sexual behavior alleged in the Administrative Complaints occurred during injections performed under fluoroscope. A general policy existed at the Back Center that required physicians to have another facility employee (medical technician, nurse, other) present in an examination room when a physician was providing care to a patient not of the same gender as the doctor. This “chaperone” policy is standard in the health care industry. There is no credible evidence that Respondent was ever shown the Back Center’s policy in writing, although it is probable the policy was accessible on the website of the entity (Osler Corporation) that owned the Back Center for a period of time. As a practicing physician, Respondent was also presumed to be aware of and to follow the chaperone policy and he admitted knowing about the policy in general. Respondent was, however, verbally apprised of the policy by his supervisor, Dr. Hynes, by the clinic operations manager, Mr. Pachkoski, and by the chief administrative officer, Cathy Bird. Respondent acknowledged that it was best to have another person in the examination room if he was providing treatment to a female patient. If no chaperone was available, it was his stated practice to keep the door open. Respondent did not feel like assistants were always available to chaperone, but neither his supervisor (Dr. Hynes) nor a co-physician (Dr. Zaidi) remembers Respondent complaining that staff was not available at the Back Center. The testimony of all six complainants in this case contradicts Respondent’s contention; each of them said they were treated by Respondent (alone) in a room with the door closed. When asked directly whether he ever treated female patients at the Back Center in a room with the door closed, Respondent admitted that it happened on occasion. The best and most persuasive evidence in this case is that a chaperone policy did exist and that Respondent did not follow the policy. Between September 2008 and January 2013, Respondent treated six female patients who are the subjects of the Department’s Administrative Complaint. Each of the patients is identified only by their initials in an attempt to maintain their confidentiality and privacy. The six patients will be addressed in chronological order based on the dates of their alleged mistreatment by Respondent. Patient S.D. Patient S.D. was a patient of Respondent between September and December 2008. S.D.’s status as a patient was stipulated to by the parties.2/ While she was Respondent’s patient, S.D. was also an employee of the Back Center. During the period of time Respondent was treating S.D., they engaged in a series of emails which could be construed as very sexual in nature. For example, on September 23, 2008, Respondent and S.D. had the following email exchange: S.D. – “You buying Dinner….Or am I your [f***ing] dinner????”Respondent – “What do you think? I want u as breakfast, lunch and dinner. My precious love.” S.D. – Ok so what am I going to eat LOL??? Let me guess a protein shake”Respondent – “If I shake it hard enough yes.” Then, on September 25, the two had this email exchange:Respondent – “NO I WANT U TO FEED ME!!! AND NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!! I’M UR MAN AND I SAY NO.”S.D. – “Then act like it and stop flirting with the [f***ing] skank!”Respondent – “WHY? GETTING JEALOUS SWEETHEART?”S.D. - “No I guess I have no reason to be.” Respondent – “EXACTLY, YOU HAD ME AT LUNCH AND LEFT TO GO TO WORK. SO YOU CAN’T SAY ANYTHING, PRECIOUS.” Respondent denies that the exchange of emails with S.D. suggests anything of a sexual nature. He said, e.g., that in his Iranian culture, talking about eating someone was tantamount to saying you cared deeply for them. Respondent’s denial of the sexual nature of the emails is not persuasive. S.D. did not testify at final hearing nor was her testimony preserved by way of a deposition transcript. The Department offered into evidence an exhibit comprised of various emails between S.D. and Respondent, two of which were discussed above. At least one co-worker, Lizamar Korfhage (a physician’s assistant at the Back Center), heard S.D. yell loudly in the office--as S.D. was being terminated from employment--that she (S.D.) and Respondent were having sexual relations. Cathy Bird, former chief administrative officer at the Back Center, had discussed the alleged affair with S.D. during several conversations before S.D.'s employment with the Back Center ended. Bird also talked with Respondent about the situation after S.D. was fired from the Back Center. Respondent was concerned that S.D. would tell Respondent’s wife about the affair and sought Bird’s guidance in the matter. Based upon the entirety of the clear and convincing evidence presented, Respondent was involved in a sexual relationship with S.D. at some point in time when S.D. was also a patient of the Back Center. Patient T.J. Patient T.J. was a 37-year-old patient when she saw Respondent at the Back Center on October 29, 2010. T.J. had seen Respondent professionally some 16 or so times previously. No inappropriate conduct had occurred on any of those visits. On the October 29 visit, T.J. was escorted into an examination room by a nurse as usual. Respondent came in and, after examining her, suggested that trigger point injections might help alleviate her pain, which she described as being a “2” on a scale of 1 to 10.3/ She agreed to the plan of treatment. Respondent had T.J. sit on an armless stool and lean her arms and head onto a desk. Respondent stood on her left side and began administering injections into her neck. As he leaned against her body, T.J. felt what she described as Respondent’s erect penis rubbing on her upper arm or shoulder. She felt like Respondent was intentionally rubbing her in what she later concluded to be a sexual manner. When he finished the injections, Respondent did not act any differently than usual. T.J. felt like something “weird” had just happened, but decided not to report it because she was not completely sure about her perceptions. Respondent, in contradiction to T.J.’s testimony, said he generally stayed four to five inches away from his patient when administering the injections, but would sometimes come into contact with them. T.J. returned for a follow up visit on November 24, 2010, receiving another injection by Respondent. She reported no misconduct by Respondent on that date. On December 23, 2010, T.J. returned to the Back Center for additional treatment. This time, her pain was radiating all the way down to her buttocks area and was described as a “3” out of 10. She was again escorted to an examination room to wait for Respondent. Respondent came in and closed the door, as was his usual practice during T.J.’s visits. After examining her, Respondent suggested injections for sacroiliac joint pain. T.J. was told to lie on the examination table on her left side. Respondent had T.J. lower her jeans to just below her knees. She had her left leg out straight and her right leg bent at the knee and across her left leg. Respondent then began to press his fingers on different parts of her inner thigh searching for the source of her pain. The pain was centered between her knee and buttocks area, and Respondent made an injection in that area. Respondent then had T.J. roll over to her right side as he pulled the table slightly away from the wall and placed himself between the wall and the table. Respondent began pushing on her inner thigh again, starting at her knee and moving upward toward her buttocks. As he did that, his tone of voice changed and he began panting. He continued to touch and probe her thighs as his hands went higher until he ultimately touched her vagina. T.J. immediately said, “That’s it” and quickly got off the examination table and pulled up her jeans. Respondent appeared sweaty and red-faced, looking to T.J. like a person who had just engaged in sex. T.J. then began to consider whether Respondent’s behavior during the October 29, 2010, visit had indeed been sexual in nature as well. She concluded that it was, and decided not to see Respondent for treatment in the future. She did not, however, report either of the incidents to the Back Center immediately. She ultimately did so, telling physician's assistant Korfhage about the incident some 10 months later. After seeing a report on television in 2013 that Respondent had been accused by another patient of sexual misconduct, she decided to make a report to the police about her own experiences with Respondent. When the police did not prosecute, she contacted an attorney in order to file a civil action against Respondent. T.J. appeared to be honest and forthright during her appearance at final hearing. Her testimony about her version of the events was credible, clear, and convincing. In his testimony at final hearing, Respondent did not specifically refute T.J.’s testimony so much as he explained how his normal process would not allow for the kind of touching T.J. alleged to have occurred. Respondent did not specifically or directly deny touching patient T.J.’s vagina, saying only that there would be no reason to do so. Patient D.K. (also known as D.W.) D.K. was a regular patient of Respondent and the Back Center. She had an appointment on January 13, 2011, to see Respondent for pain she was experiencing in her lower back and sides. On previous visits to the Back Center, Respondent had done localized injections to help D.K. deal with the pain. On those visits, she had simply rolled her pants down below her waist and leaned against the examination table in order for Respondent to do the injections. On the January 13 visit, she was told to lie on the table and pull her jeans down to her knees while Respondent went to prepare the medications. Respondent returned, closing the door as he came into the room. Respondent began injecting medications into her back and both sides. He then moved lower and administered injections into her thighs although she had not complained about any pain in that area. Respondent then moved her jeans down to her ankles and began administering injections into her calves. While he was injecting her, she felt him rubbing his erect penis against her thighs and heard his breathing get heavier. She could also feel Respondent lean closer to her and felt his breath on her thighs as he injected her calves. After the injections were complete, D.K. said Respondent was sweating, flushed, and “looked like my husband after we’ve had intercourse.” D.K. left the office and returned to her car. She immediately began to mentally process what had occurred to her, but did not immediately tell anyone at the Back Center. She was shocked and upset by the event but waited a few days before telling her husband what had happened. She then reported the events to someone at the Back Center. The Back Center asked her to come in so she could discuss the situation with Dr. Hynes, medical director of the Back Center. Later, D.K. made a complaint to local law enforcement about the incident. D.K. has also contacted an attorney to look into filing a civil lawsuit against Respondent. In response to the complaint by D.K., Dr. Hynes mandated that Respondent have a medical assistant with him during any contact with female patients. Despite the prohibition, Respondent continued to see female patients in an examination room without others present. He was confronted several times by the site operations manager about this violation, but Respondent did not change his behavior. D.K. was a credible witness. She provided a clear and unequivocal description of what transpired during her visit to the Back Center on January 13, 2011. Patient C.J. Patient C.J. presented to the Back Center experiencing pain as a result of shrapnel wounds received while she was serving in the U.S. Army in Afghanistan. C.J. did not testify at final hearing so her physical demeanor could not be assessed. Her deposition transcript was admitted into evidence over objection. In May 2011, C.J. was referred to the Back Center by her treating physician at Patrick Air Force Base. She took the referral, called the Back Center, and was assigned to Respondent for pain management services. C.J. went to the Back Center on May 4, 2011. She was experiencing significant pain and was physically uncomfortable. C.J. was processed in by a receptionist and then led to an examination room by a female employee. The employee took C.J.’s blood pressure, gathered some personal information, and left the room. On that date, C.J. was wearing jeans, a blouse, and open- toed shoes. She had on “full underwear” that day. Respondent came into the room and examined C.J. as she sat on the examining table. He advised C.J. that an injection might benefit her. As C.J. remembered it, the injection was to be in the side of her neck, and then in her back or hip. Respondent left the room to obtain the medications as C.J. waited. Upon his return to the room, Respondent injected Depo- Medrol 40 mg, Toradol 30 mg, Lidocaine 2% 0.5 mL, and Marcaine 0.5 mL into the left side of her neck. After the initial injection, Respondent left the room while the medication took effect. C.J. began to feel very relaxed and sleepy. Respondent recollects that C.J. complained of feeling light-headed, but does not believe any medication he injected would have caused that to happen. Respondent later returned to the room and prepared to give C.J. another injection into her hip area. She sat up on the table as Respondent pulled one end of the table slightly away from the wall.4/ After moving the table, Respondent had C.J. lie down on her side, lift her blouse, and unbuckle her jeans. She then slid her jeans and underwear down past her hips as directed. At that point, Respondent began injecting a solution into C.J.’s hip. As the injection was proceeding, she felt Respondent slide his hand over her hip and “in my groin area.” While doing that, Respondent’s crotch was pressed against C.J.’s buttocks. C.J. felt what she believed to be Respondent’s erect penis pushing against her buttocks as he administered the injection. After the injection was completed, Respondent came around from behind the table and told C.J. she would need to come see him again in a few weeks. C.J. got up from the table and began to realize that “something was not right” about the treatment she had just received. When C.J. went to the front desk to check out, she asked a nurse to identify the medications which had been injected but was unable to get that information. C.J. then left the Back Center and immediately called her nurse case manager at Patrick Air Force Base to report what had occurred. Her nurse advised C.J. to call 911 to report the incident; C.J. did so as she walked out to her car in the parking lot. A policeman arrived some 20 minutes later and took her statement. The officer then went inside to talk to Respondent. He said Respondent appeared to be surprised and shocked by C.J.’s allegation. The police decided not to file any charges against Respondent based on C.J.’s complaint. The reporting police officer (Middendorf) seemed to question C.J.’s veracity or truthfulness on the day of the incident. He said C.J. was upset and seemed lethargic, except when she was talking on the telephone to “one of her superiors.” According to Middendorf, C.J. acted consistent with someone who may be under the influence of drugs. He did acknowledge that C.J. had just come out of a pain management clinic. Middendorf also felt C.J. was either confused or not telling the truth concerning where Respondent had allegedly touched her. C.J., who was obviously distraught at the time, indicated both her pubic area and her outer thigh when she told Middendorf that Respondent had touched her “groin.” Middendorf challenged her about that and C.J. became defensive and argumentative. He did not provide any credible testimony as to why he believed she might be lying to him. His statement that C.J.’s voice changed when she was talking to her office on the phone is not conclusive evidence that she was not telling him the truth. C.J. never returned to the Back Center. She obtained pain management treatment elsewhere. Inasmuch as C.J.’s demeanor could not be judged because she did not appear in person, her testimony must be considered using other factors. In this case, the testimony was very similar to the facts described by other patients of Respondent concerning their treatment by him. The events as described by C.J. were believable and convincing, especially when compared to the allegations by other alleged victims. Neither C.J. nor any of the other alleged victims/complainants has talked to other alleged victims about their experiences, so there does not appear to be any collusion between the victims. Patient M.B. Patient M.B. was already a regular patient at the Back Center when she first saw Respondent on July 7, 2011. Respondent’s notes in M.B.’s chart indicate the patient was presenting for “initial evaluation” that day, but that was not correct; she had already been seen several times by other physicians at the Back Center. M.B. had chronic lumbalgia (low back pain) and lower extremity dysesthesia (a burning sensation) which was increasing progressively. Respondent examined M.B., discussed his findings, and scheduled a follow-up appointment for August 2, 2011, at which time he gave her an injection of 1% Xylocaine with approximately 30 ml of Lidocaine 1% on both of her side hips. He also injected a block with a solution containing 2 ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo- Medrol 80 mg into M.B.’s joints. M.B. reported no suspicious or untoward behavior by Respondent during the July 7 and August 2 appointments. On August 29, 2011, M.B. returned to see Respondent. She presented with pain in her hips and left side. Nurse Bobbi McDonald escorted M.B. to the examination room and took her vital signs before leaving. Respondent came into the room, alone, and closed the door. At that visit, M.B. was wearing khaki mid-thigh cargo shorts, a blouse that tied around her neck, and bikini underwear. Respondent asked about her pain, touched points on her body to identify the exact pain locations, and adjusted her back manually. He then suggested injection of a steroid as a stop-gap measure prior to scheduling her for a fluoroscope injection later. M.B. agreed to the plan. Respondent left the examination room to get the medication. When he returned, he was alone and again he closed the door. Respondent told M.B. to pull her shorts down below her waist and to cover herself with a paper gown. She pulled her shorts and underwear down about halfway across her buttocks, which was lower than she would normally pull them for fluoroscope injections. Respondent began to clean the area for the injection and asked M.B. to pull her garments down further, below her buttocks. Respondent then pulled the table out from the wall and he went between the table and the wall. He injected M.B.’s hip about five times with a solution containing Depo Medrol 80, Toradol 60, Lidocaine, and Marcaine 1 ml. As he injected her, M.B. could feel Respondent’s groin touching her hip. She could feel what she believed to be Respondent’s erect penis rubbing against her in a back and forth motion. By this time, her paper gown had fallen off, exposing her buttocks and vaginal area. After the last injection, M.B. felt Respondent’s fingers touching her vagina. As she pushed upward to get off the table, M.B. felt Respondent touch her vagina again. She got off the table, pulled up her pants, and sat down as the doctor began talking to her. M.B. did not say anything to Respondent. She immediately believed that she had been sexually assaulted, but was too confused and shocked to say anything to anyone. M.B. did not initially report Respondent’s behavior to the Back Center. She later reported her allegations to the Melbourne Police Department and also filed a civil lawsuit against Respondent and the Back Center. (M.B. would continue to return to the Back Center, but did not see Respondent again for any of her treatments.) M.B.’s testimony was not as immediately believable as that of some of the other witnesses. Based on her personality, fear of the process, or some other factor, she seemed to be fairly emotionless in describing the incident. However, inasmuch as her testimony was corroborated by what other patients had experienced, her clearly enunciated statements are convincing. Further, M.B. exhibited extreme visual cues as to her intense dislike for Respondent at the final hearing. The testimony of M.B. alone would not be clear and convincing evidence of any wrongdoing by Respondent. However, her testimony is corroboration of and support for the testimony of other victims. Respondent's employment at the Back Center was terminated shortly after M.B.'s appointment with him. There is no evidence as to Respondent's employment from September 2011 until he went to Advantacare in March 2012. Patient A.H. Patient A.H. presented to Advantacare (Daytona Beach office) on January 9, 2013, in an effort to address pain she was suffering as a result of an automobile accident that occurred in October 2012. She wanted to reduce her pain while also reducing the amount of medications she was taking. A.H. had a job which required driving, so she needed to be as drug-free as possible. A.H. was escorted to the examination room. She remembers that Respondent came in, closed the door, and propped it shut. Respondent remembers the door to that room being open, that it would open by itself unless something was placed against it. The medical technician assigned to Respondent said the door did not have any problems, but it would always be half open. There is no corroborated evidence as to whether the door to the room was open, closed, or ajar when A.H. was being examined. Respondent examined A.H. and began to show her some exercises and stretches that he thought might alleviate some of her pain. As she was sitting in a chair being shown how to stretch, A.H. felt Respondent’s erect penis pushing against her back. She quickly told Respondent “I’ve got it” in order to stop his actions. She got up quickly and moved to another chair in the office. A.H. clearly described what she had felt and had no confusion or doubt about what happened. Her testimony about the incident was credible. Respondent then told A.H. to lie on the table on her side with her arms stretched out in front of her. Despite what had just happened, A.H. complied with his directions.5/ When she got into position, Respondent had A.H. move her body over to the very edge of the table and began to manipulate her back. As his hands continued down her back, she felt his hands go down inside her panties. As this happened, she could feel Respondent “humping” her, grinding his groin area against her backside. Respondent then told A.H. to change positions on the table, moving her feet to the opposite end. Amazingly, she again complied with his instructions. Respondent began touching her upper thigh near her vagina and “did the same thing he had done before.” At that, A.H. quickly moved off the table and onto a chair, where she sat rigid and refused to move. Respondent seemed calm and relaxed, showing no sign of having acted inappropriately. A.H. did not tell anyone at Advantacare about the incident on that day because she could not fully grasp what had happened. As she began to understand the situation better, she was worried about reporting the incident because it would be her word against the doctor’s. A.H. did tell another doctor (Dr. Jacobson) about the incident when she saw him the next day for a regularly scheduled appointment. Dr. Jacobson had been an employee with Advantacare and presumably relayed A.H.’s allegations to the center. A.H. also reported the incident to the Board of Health and to law enforcement. She later contacted an attorney about filing a civil lawsuit against Respondent. A.H. did not return to Advantacare for treatment after this event because of the traumatic impact of the incident. Respondent has no independent recollection of A.H. as a patient, but said he did not touch her inappropriately. A.H.’s testimony was believable. She was a credible witness and articulated her testimony clearly. It is strange that A.H. would continue to obey Respondent even after he had touched her inappropriately, but she was obviously a compliant person, especially as it relates to physicians. Respondent’s defenses to allegations by patients Respondent claims he never saw a written chaperone policy at the Back Center but that he knew that it existed. According to him, there was insufficient staff available to make it possible to comply with the policy. Respondent’s testimony in this regard is rejected as being contrary to better, more persuasive evidence. Respondent said he was on several medications for “five or six years” prior to the final hearing, including Zoloft for mild depression, Lisinopril for hypertension, and Toprol for hypertension. One of the possible side effects of those medications is impotence or erectile dysfunction. However, during the time he was taking these drugs, Respondent fathered his two children. There is no competent evidence that Respondent suffered from impotence or erectile dysfunction during the time of any of the allegations about sexual misconduct. Respondent usually wore a lab coat when treating patients. The coat is long and had large pockets in the front, at about groin level. Respondent would keep empty syringes in his coat pocket. He suggests that female patients who said they felt his erect penis were actually feeling the syringes. His suggestion is not very plausible or persuasive. Respondent demonstrated at final hearing the normal physical stance he took when doing an injection of a patient in an examination room setting. He suggested that his body would be turned at a 45-degree angle from the patient rather than facing them directly, thus eliminating the possibility of full frontal contact with the patient. He also said that he generally stood four or five inches away from the patient, but might come into contact with the patient occasionally. Neither the statements nor his demonstration were persuasive. Respondent’s contention is that each and every one of the patients who alleged sexual misconduct was lying. He suggests that patient D.K. was overweight and thus would not have sexually aroused him. Also, he maintains that her description of the injections being performed while Respondent was rubbing against her would have necessarily resulted in horrible pain at best or a broken needle at worst. He claims that since patient M.B. was married to a policeman, she would have necessarily taken photographs of her numerous injections to preserve a record and she would have complained immediately. Her failure to do so, he suggests, impugns her testimony. Respondent contends that patient T.J.’s tardiness in reporting her allegations suggests the allegations were false. Respondent refutes A.H.’s allegations on the basis that there was a disagreement as to the physical layout of the medical office. Respondent contends there is no evidence that patient S.D. (his alleged lover) was his patient, even though there is a stipulation to that effect. Despite these speculative defenses, the evidence presented by the alleged victims is credible and accepted as fact. Failure to update practitioner profile A letter dated March 27, 2013, advising Respondent of his termination from participation in the Medicaid Program, was mailed to Respondent at two separate addresses: 2222 South Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e., the address of the Back Center, and 930 South Harbor City Boulevard, Melbourne, Florida 32901, the address for Osler (the company with whom the Back Center merged at some point in time). The letter to 2222 South Harbor City Boulevard was received on April 1, 2013, and an acknowledgement was signed by Chandra Carrender, a Back Center employee. Respondent’s employment with the Back Center had been terminated some 16 months previously, i.e., in August 2011. The letter mailed to 930 Harbor City Boulevard was returned as undeliverable. The termination letter provided Respondent notice of his right to contest the decision. He was given 21 days from receipt of the letter to file a Petition if he wanted to challenge the termination. Respondent did not file a challenge, so on or about June 21, 2013, a Termination Final Order was filed by the Agency for Health Care Administration (AHCA), setting forth Respondent’s termination from participation in the Florida Medicaid Program. The termination was issued pursuant to section 409.913, Florida Statutes. By law, Respondent was required to update his Florida practitioner profile within 15 days of receipt of the Termination Final Order. The Termination Final Order was mailed to Respondent, return receipt requested, at two different addresses: The 930 South Harbor City Boulevard address and the 2222 South Harbor City Boulevard address. Respondent denies having received the letter or TFO until just prior to the formal administrative hearing in this matter. Licensed physicians in the State of Florida are required to maintain a current address of record with the Agency for Health Care Administration (AHCA) and the Department of Health. Neither Respondent nor the Department provided evidence as to what Respondent’s official address of record was at the time the TFO and the letter were sent to Respondent at the two Harbor City Boulevard addresses. According to the deposition testimony of Michael West of the AHCA Medicaid Program Integrity office, the notices were sent to Respondent’s “address of record” per section 409.913(6), Florida Statutes. West’s testimony, however, did not specify what address that was. It might be logically presumed that one or both of the Harbor City Boulevard addresses were the “address of record,” because that is where the notices were mailed. However, there is no clear and convincing evidence as to Respondent’s official address of record at the time the Termination Final Order was mailed. The statutory section referred to by West states: Any notice required to be given to a provider under this section is presumed to be sufficient notice if sent to the address last shown on the provider enrollment file. It is the responsibility of the provider to furnish and keep the agency informed of the provider’s current address. United States Postal Service proof of mailing or certified or registered mailing of such notice to the provider at the address shown on the provider enrollment file constitutes sufficient proof of notice. Any notice required to be given to the agency by this section must be sent to the agency at an address designated by rule. Respondent did not update his Florida practitioner profile because he claims never to have received a copy of the TFO or the letter. Neither Respondent nor the Department provided direct evidence of Respondent’s “address last shown on the provider enrollment file” as of March 27, 2013.6/ Other factual considerations Respondent was terminated from employment at the Back Center in September 2011. The termination occurred as follows: T.J. reported the alleged October 29, 2010 incident in April 2011. Dr. Hynes was already aware of another incident (from D.K. in January 2011). Dr. Hynes met with Respondent to discuss his alleged behavior. Respondent denied the allegations, saying that people just seem to like him and take advantage of him. He said the patients were lying about the incidents. Dr. Hynes mandated at that time that Respondent have a chaperone in the examining room with every female patient. Rather than being allowed to exercise “medical judgment” like other doctors in the clinic, Respondent was ordered to always use a chaperone with all female patients. After patient C.J.’s allegations came to light in May 2011, Dr. Hynes told Respondent that three times was enough; something had to be done. The Back Center commenced preparation of a termination letter. The letter was to tell Respondent that, pursuant to his Employment Agreement, the Back Center was providing him the 180-day notice of termination of employment “without cause.” The purpose of that letter was to allow Respondent time to find a job and not have a blemish on his record. One of the bases for the termination letter was that Respondent had been referred to the Physicians Recovery Network (PRN) for counseling to address his behavior. Dr. Hynes presumed Respondent was obtaining that counseling. However, when C.J. reported the incident on May 4, 2011, Dr. Hynes found out that Respondent had not been going to PRN as he had previously indicated. At about the time the 180-day letter was being drafted, another incident (by patient M.B.) was reported to the Back Center. Upon hearing of that allegation, Dr. Hynes verbally fired Respondent, effective immediately, with cause. The 180-day letter was not actually delivered to Respondent until after the verbal termination, so the letter was moot when it arrived. Respondent did not tell his next employer, Advantacare, that he had been terminated from employment by the Back Center. He also did not advise Advantacare about the sexual allegations made by patients at the Back Center. In summary, Respondent engaged in activities of a sexual nature with patients at the Back Center in December 2010, January 2011, May 2011, and August 2011 (in addition to his relations with S.D. in 2008–2010). He engaged in sexually related touching of a patient at Advantacare in January 2013. His employment with the Back Center was terminated in September 2011; his employment with Advantacare was terminated in April 2013. Former patients of Respondent expressed dismay that he was being charged with the violations set forth in the Administrative Complaint. They found Respondent to be a caring and professional doctor. It is clear Respondent did not treat all his patients the same way he treated the victims identified herein. Some of his co-workers said they did not see Respondent engage in any of the alleged actions. They did not receive any complaints from other patients. Respondent obviously has a stellar reputation with some of his patients and co-workers. That status, however, does not excuse his behavior with the victims in the present cases. It is also alleged that Bobbi McDonald was a rumor-mongerer and a liar. She appeared credible at final hearing and there is no competent, substantial evidence to support the dispersions cast by others. It should be noted that several witnesses identified by Respondent were displeased with the manner in which they were questioned by Department personnel prior to the final hearing. The witnesses expressed extreme discomfort when Department employees (attorneys) suggested that Respondent was “an addict” or a sociopath. While a state agency is bound to pursue all claims against individuals which it is responsible for licensing and monitoring, it is improper to harangue or disparage such persons in order to sway potential witnesses’ testimony. Upon full review of the evidence in this case, the potential witnesses who complained about the Department’s aggressive nature did not provide substantive testimony on the issues of this case. Thus, any harm which may have resulted from the Department’s statements would not affect the final decision herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health revoking Respondent, Albert Esmailzadeh, M.D.’s license to practice medicine in the State of Florida. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case, and that payment of such costs be assessed against Respondent, Albert Esmailzadeh, M.D. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of November, 2014.
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.
Findings Of Fact Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period. At the time of F.S.' 1984 visit, the standard of care for a male over 40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back. Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on F.S. by Respondent. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point, F.S was referred for blood tests specific to prostate cancer and to an urologist. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history. The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido. On March 20, 1989, Respondent began treating Patient C.C. and admitted C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital. Respondent's discharge summary for C.C. dated April 4, 1989, included the following: . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation. She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within 24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . . The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons. Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her. On June 20, 1989, Respondent received a telephone call from C.C. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida. Respondent was seeing the patient as both a friend and a medical doctor. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed. Respondent did not make any sexual advances toward C.C. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints. ENTERED this 3rd day of March, 1993, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1993.
Findings Of Fact The Respondent, Peter Alagona, Jr., is licensed to practice medicine in the State of Florida. He is board-certified in internal medicine with a subspecialty in cardiology and has practiced cardiology since 1981. There is no evidence that the Respondent has been the subject of professional discipline except for this proceeding. In 1989, the Respondent became acquainted with V.P., who worked as a receptionist at a hospital where he had practice privileges. Their work relationship became friendly and, although the Respondent was married and had children, he and V.P. responded to each other's friendly manner by mutual flirtation. At first, their flirting was discrete but later became more open and romantic. The Respondent began to write V.P. notes and greeting cards and send her flowers. In approximately May, 1989, V.P. indicated her willingness to begin an intimate and sexual relationship. The Respondent did not hesitate to oblige her. There is no evidence that the Respondent used a doctor-patient relationship to induce V.P. to engage in sexual activity with him, as alleged. When the sexual relationship began, there was no doctor-patient relationship between them. During her tenure at work at the hospital, V.P. from time to time complained of a rapid heart beat, and one of the four cardiologists at the hospital would respond to her complaint. The Respondent was one of the several doctors who had occasion to respond. No treatment ever was required. V.P.'s heart beat would soon return to normal, and everyone would return to work. No true doctor-patient relationship was established, and neither the Respondent, the other doctors nor V.P. ever thought one had been established. The allegation that the Respondent essentially intentionally used drugs he prescribed for V.P. during the course of their affair to control her and prolong the sexual relationship with V.P. against her will hinges on the following reference in V.P.'s deposition transcript: Q. Just so that I'm clear, did Alagona ever tell you that if you did not have sex with him, he would not write prescriptions for you? A. Those aren't the words. He has made comments about, "Where are you going to get your prescriptions?" Q. When did he make those comments? A. I don't know. During the relationship, at the end of the relationship. Q. Give me some of the circumstances surrounding those comments. A. It was, I'm sure, during an argument or something. I don't know. In view of all the evidence, that allegation is rejected as not proven. It is factual that, in another poor judgment that flowed from the poor judgment in initiating and conducting the affair in the first place, the Respondent began to act as V.P.'s personal physician for limited purposes during the course of the affair. When she complained of migraine headaches, he prescribed pain medication such as Tylox, a Schedule II controlled substance containing oxycodone, and Inderal, a beta-blocker and a legend drug. For stress, he prescribed Valium, which contains diazepam, also a legend drug. Although the Respondent clearly was acting as the doctor in a doctor-patient relationship when he prescribed these drugs, he still did not view himself as acting in that role and did not keep a written record of the drugs or the course of treatment in connection with those prescriptions. The allegation that the Respondent failed to practice medicine in accordance with required standards of care by not ordering the patient to receive mental health counseling but instead inappropriately allowing the patient to remain on Tylox also depends in large part on the testimony of V.P. In view of all the evidence, V.P.'s testimony pertinent to this allegation is rejected. The evidence was that the Respondent repeatedly advised V.P. to seek counseling, albeit not for drug abuse. Until April, 1990, the Respondent was not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions were not excessive and would not, in and of themselves, have indicated to the Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox; nor did V.P. exhibit clear signs of drug abuse or addiction prior to April, 1990. However, V.P. apparently was obtaining Tylox and other legend drugs from other sources without the Respondent's knowledge. She was seeing other physicians for the purpose of obtaining prescriptions, and she also was forging the Respondent's and other doctors' names to prescriptions to obtain additional drugs illegally. (One of the doctors whose name she forged predeceased the date of the forged prescription.) In April, 1990, the Respondent was notified that V.P. had been hospitalized for a drug overdose. In response to the request for advice from the attending physician, the Respondent recommended a psychiatrist for counseling. However, V.P. did not cooperate. She attended only one counseling session and refused further counseling. After the overdose hospitalization, the Respondent did not prescribe any more Tylox. However, again without the Respondent's knowledge, V.P. continued to obtain Tylox and other drugs from her other sources. The Respondent's judgment continued to be distorted and poor as a result of his intense sexual and romantic relationship with V.P. He continued to urge V.P. to obtain counseling for several reasons but, again, not specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and she began putting pressure on the Respondent to divorce his wife and marry her. She began acting erratically, and her judgment also was poor. During a week- long visit to her family's home during the summer of 1990, she contacted an old boy friend, married him, changed her mind, and began annulment proceedings. By late 1990, V.P. started dating another doctor, and the pressure on both V.P. and the Respondent increased. The Respondent was unable to decide what to do, and the stress got ever greater as V.P. threatened to end the affair with the Respondent. While probably genuinely concerned for V.P.'s welfare, the Respondent probably also believed that, if V.P. got counseling, she would "see the light" and decide not to end their affair. Finally, the Respondent himself felt the need for counseling due to the stress of the affair, and he probably believed that she felt the same stress. Eventually, in early 1991, V.P. followed through on her threat and made it known to the Respondent that she was dropping him and choosing the other doctor. For some time, the Respondent was devastated and continued to try to persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute, holding out to the Respondent some hope that she would return to him if he divorced his wife. Finally, practically an emotional wreck and despairing of any other way to get over his affair with V.P., the Respondent checked himself into an out-of-town residential psychiatric program. He purposely did not tell V.P. where he was, but she found out and, on the day of his discharge, sent him flowers with a card saying that she would never let him go. Eventually, the affair ended, and V.P. married the other doctor soon after.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent not guilty under Counts I and II but guilty under Count III; (2) placing him on probation for two years; (3) requiring him to take appropriate continuing medical education, if available, dealing with the physician-patient relationship and the prudence of avoiding the dual sexual/physician-patient relationship; and (4) imposing on him an administrative fine in the amount of $2,500. DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to second sentence of 5., although he cannot now remember when he prescribed Tylox, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately approximately when and what he last prescribed so as not to expose V.P. to a health risk. 6. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to the last sentence, although he cannot now remember his prescriptions, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately when and what he last prescribed so as not to expose V.P. to a health risk. 7.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that patients need to be kept under "surveillance." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. As to last sentence, rejected as not proven that all "drugs," in all doses, "control a patient's emotional state and level of pain." Accepted that some can, in certain doses, and otherwise accepted and incorporated to the extent not subordinate or unnecessary. Accepted that it is not the only indication; subordinate to facts contrary to those found, and unnecessary. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent "did not follow through with V.P.'s medical problems." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, rejected as not proven; third, accepted that she said it, but subordinate to facts contrary to those found. First sentence, rejected as not proven; rest, accepted that she said it, but subordinate to facts contrary to those found. Rejected as not proven that he reviewed all of the prescription and hospital records. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. To the extent not conclusion of law, accepted and incorporated. First sentence, rejected as not proven; second, cumulative; third, in part cumulative and in part rejected as not proven (that he had no justification); fourth, accepted but subordinate to facts contrary to those found (he did some diagnostic testing); and last two rejected as not proven in that the evidence was that V.P. rejected the Respondent's repeated recommendations to her that she seek mental health counseling, but otherwise accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, accepted but not necessary; rest, rejected as not proven. Respondent's Proposed Findings of Fact. 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate. Conclusion of law. Accepted and incorporated. 26.-27. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. In large part, argument and conclusion of law; in part, accepted but largely subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that it is "clear . . . that V.P. feels that Alagona left her." (Much of their behavior is difficult to explain, such as why V.P. would act as if she did not want to let Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely subordinate and unnecessary. Accepted but largely subordinate and unnecessary. Last sentence of C), rejected as contrary to the greater weight of the evidence that it is "safe to infer that V.P. forged these prescriptions." (The evidence raises the question and possibility of forgery, especially in the absence of testimony on the subject from V.P. and Palay, but it is not "safe to infer.") Otherwise, accepted but largely subordinate and unnecessary. First four sentences, argument and subordinate. Rest, generally accepted and incorporated to the extent not subordinate or unnecessary. (However, while V.P. may have been "in the emotional driver's seat," it does not appear that she knew where she was going.) Accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. As to the third and fourth sentences, there was no evidence as to the nature of doctors' "orders." But, based on the evidence, the Respondent did not "order" counseling. He suggested or recommended it and offered to help her get it, and V.P. declined. If the Respondent had "ordered" counseling, the patient still may or may not have followed his "order." In either case, it would appear that the critical decision is what a physician does in the face of the patient's failure to comply. It would seem that the only thing a physician reasonably can do in this situation is stop prescribing and, if necessary, terminate the physician-patient relationship. As to the rest, accepted but subordinate to facts found, and unnecessary. 39.-42. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Regional Office VI-Legal Division 9325 Bay Plaza, Suite 210 Tampa, Florida 33619 L. D. Murrell, Esquire 319 Clematis Street, Suite 400 West Palm Beach, Florida 33401-4618 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
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
