The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Bret L. Lusskin (Respondent) was a licensed physician in the State of Florida, having been issued license number ME 0007919. Respondent has been practicing medicine in Florida for approximately 33 years. Respondent is board-certified in orthopedic surgery. On January 8, 1992, the Department of Professional Regulation, Board of Medicine (Board of Medicine) filed a Final Order of disciplinary action against Respondent in DOAH Case No. 90-1565, DPR Case Nos. 89-07389, 89-011684, and 89- 011856. By the Final Order, the Board of Medicine reprimanded Respondent's license and further ordered the following: Within 60 days, Respondent must be evaluated by a psychiatrist approved by the Physician's Recovery Network and must comply with all recommendations of said psychiatrist including entering into and complying with a contract with the Physician's Recovery Network, if applicable. Respondent shall not examine or treat any female patients without a female employee who is a health care professional licensed by the Department of Professional Regulation present in the room. Respondent must complete the continuing medical education course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or an equivalent course approved by the Board. Respondent appealed the Board of Medicine's Final Order to Florida's Fourth District Court of Appeal, Case No. 92-0251. The appellate court filed its decision, which was "Per Curiam Affirmed," on December 9, 1992, and issued its Mandate on February 26, 1993. On April 7, 1993, the Board of Medicine filed a Final Order of disciplinary action against Respondent in DPR Case Nos. 90-03022 and 92-03622, in which Administrative Complaints were filed against Respondent. One of the Administrative Complaints, Case No. 92-03622, filed on July 13, 1992, was based upon Respondent's failure to present himself for evaluation by a psychiatrist approved by the Physician's Recovery Network (PRN) within 60 days of the Board of Medicine's Final Order filed on January 8, 1992. The Final Order in DPR Case Nos. 90-03022 and 92-03622 approved a consent agreement involving the cases. The consent agreement provided, among other things, that Respondent neither admitted nor denied the allegations of fact in the Administrative Complaints, that Case No. 92-03622 be dismissed, that Respondent be reprimanded, and that an administrative fine of $2,000 be imposed. On January 29, 1993, following the appellate decision, a psychiatric evaluation of Respondent was performed at the University of Florida, College of Medicine in Gainesville, Florida, by Dr. George W. Barnard, M.D., a psychiatrist, and Dr. Michael J. Herkov, Ph.D. Dr. Barnard was a professor and Director of the Forensic Psychiatry Division at the University, and Dr. Herkov was an assistant professor at the University. Dr. Barnard was approved by PRN. Among other things, Drs. Barnard and Herkov administered several psychological tests to Respondent. The tests were the Minnesota Multiphastic Personality Disorder (MMPI), Million Clinical Multiaxial Inventory (MCMI), and the Rorschach Inkblot Test. Drs. Barnard and Herkov opined, among other things, that Respondent suffers from a "dysthymic condition" and from "characterological problems that play a considerable role in his [Respondent's] behavior." Further, Drs. Barnard and Herkov opined that Respondent denies any responsibility for his inappropriate conduct, instead blaming his patients, and that such denial places Respondent "at serious risk to continue to engage in these inappropriate behaviors." Drs. Banard and Herkov made several recommendations. Concerned with the "intransigence of [the] characterological traits and the strength and pervasiveness of his [Respondent's] current denial," Drs. Banard and Herkov recommended, among other things, that Respondent participate in a structured and intensive inpatient psychotherapy treatment program, specializing in sex offenders; that, after the inpatient treatment, Respondent receive long-term psychotherapy in his local community with a therapist trained in dealing with sexual offenders, noting that prior outpatient psychotherapy had been ineffective; that periodic reports be made to the PRN; that Respondent become a member of the local Caduceus Group; and that Respondent continue the practice of always having a female assistant present when examining a female patient. Furthermore, Drs. Banard and Herkov stated that Respondent's "motivation for change appears to be poor, and any intervention program hinges to a great extent on patient [Respondent] willingness to change" and that Respondent "may have to be faced with dire consequences before he possesses the necessary motivation to participate in such a program." Respondent desired a second opinion. On April 9, 1993, a second psychiatric evaluation of Respondent was performed at the University of South Florida, Tampa, Florida, by Dr. Anthony Reading, M.D., a psychiatrist, and Dr. Irving B. Weiner, Ph.D. Dr. Reading was the Chairperson of and a professor at the Department of Psychiatry and Behavioral Medicine at the University. Making no specific diagnosis, Dr. Reading opined, among other things, in the evaluation that Respondent does not represent an ongoing danger to female patients through inappropriate sexual behavior and that Respondent has a number of emotionally constricted personality attributes which are under control. Dr. Reading recommended, among other things, that the requirement of having a female professional present during Respondent's examination of female patients be continued and that Respondent receive outpatient psychiatric treatment, conducted by a PRN-approved individual who is trained in the therapy particularly associated with Respondent's problems and who has no prior social or professional relationship with Respondent. A copy of Dr. Reading's evaluation was forwarded to the PRN. A review of the evaluations by Drs. Banard and Reading was conducted by Dr. Raymond Pomm for the PRN. Dr. Pomm was a PRN staff psychiatrist who renders opinions to PRN's director, Dr. Roger Goetz, regarding psychiatric, chemical dependency and boundary violation cases. Based on Dr. Pomm's review, PRN took the position that Dr. Reading's evaluation was based on incomplete information and was, therefore, invalid. Wanting to obtain an independent review, PRN forwarded a copy of the two evaluations performed by Drs. Banard and Reading to Dr. James Edgar, a psychiatrist at the South Tampa Medical Center, Tampa, Florida, for his review. Having reviewed the evaluations, Dr. Edgar reached several conclusions and notified PRN of his conclusions by letter dated May 5, 1993.2 Dr. Edgar concluded that Respondent suffers from "a characterological disorder characterized by narcissistic traits of self-centeredness and relative callousness to the needs of others, denial of personal responsibility for his action and a preference for getting his own needs met without much regard for the needs of others." Dr. Edgar determined that Respondent's prognosis was "extremely guarded if not poor" and that Respondent "shows no evidence of motivation for treatment." Further, Dr. Edgar concluded that Respondent had misrepresented himself to Dr. Reading and that Respondent was a "significant risk" to patients. Moreover, Dr. Edgar concluded that, if Respondent was to be allowed to continue his practice under the auspices of the PRN, Respondent should be participating in a "well structured treatment plan." Dr. Edgar provided specifics regarding the treatment plan, including an autonomous female attendant, inpatient treatment and, after the inpatient treatment, outpatient psychotherapy. Also, Dr. Edgar indicated that he was "pessimistic" that the inpatient treatment would have any significant impact on Respondent's personality structure. Dr. Edgar's report was presented to the PRN. After reviewing the evaluations and Dr. Edgar's report, PRN required Respondent to present himself for admission for inpatient therapy and provided Respondent with a choice of facilities for the therapy. The Menninger Clinic at the C.F. Menninger Memorial Hospital in Topeka, Kansas, was chosen. It was agreed by Respondent and PRN that they would abide by the recommendations made by The Menninger Clinic. On or about May 3, 1993, Respondent presented himself to The Menninger Clinic for evaluation by Dr. Donald E. Rosen, M.D., Director of the Professionals in Crisis Program at The Menninger Clinic, and by Dr. Rosen's staff. However, inpatient admission did not occur. In his report, Dr. Rosen stated, among other things, that Respondent "clearly did not desire inpatient treatment (or treatment in general)"; that Respondent, during the initial interview, "denied the presence of any psychiatric symptoms, psychological conflicts, or presence of any treatment goals that he would hope to accomplish in a treatment process"; and that Respondent was openly cautious and withheld some information, with his withholding being "overt and in other ways, more subtle." Dr. Rosen was, therefore, unable to make any specific recommendation, stating, among other things, that "no specific recommendations for ongoing psychiatric treatment are made at this time." Further, in his report Dr. Rosen addressed the situation of a female attendant being present during Respondent's treatment and examination of female patients. Dr. Rosen was concerned with Respondent's manipulative behavior and stated that, considering Respondent's "long-standing history of sexual relations with his patients, his lack of guilt about these relationships, his inability to see this behavior as a personal ethical issue, and the overt manipulativeness that surrounded this evaluation," he could not "state with confidence that the patient [Respondent] will not attempt to make his employees allow him to see female patients without a female healthcare professional in the room at all times." It is undisputed that Dr. Rosen did not make any recommendations. By letter dated May 6, 1993, to Respondent and written at Respondent's request, Dr. Rosen confirmed that Respondent presented himself for inpatient admission but was not admitted. Furthermore, Dr. Rosen stated the reasons for Respondent not being admitted, which were because Respondent "denied the presence of any psychiatric symptoms, denied any psychological problems you [Respondent] wished to work on, and had no goals for what you [Respondent] hoped treatment would accomplish." These reasons were the same reasons expressed in Dr. Rosen's report. Inpatient treatment could not be accomplished, if Respondent refused to admit that he had psychological problems and that he needed to work on his psychological problems, and to establish goals for what he hoped the treatment would accomplish. By certified letter dated August 3, 1993, to Respondent, PRN confirmed its request made May 26, 1993, that Respondent not practice medicine until he completed inpatient treatment. Furthermore, in the letter PRN notified Respondent that, before he could return to the practice of medicine, his treating psychiatrist must confirm that he is able to return to the practice of medicine with reasonable safety to the public. By letter dated February 10, 1994, to the then Department of Business and Professional Regulation (Department), PRN notified the Department that Respondent was in violation of the Board of Medicine's Final Order filed January 8, 1992. PRN recapped, among other things, the evaluations performed, including the evaluation at The Menninger Clinic, and the results of the evaluations. Furthermore, PRN advised the Department of the request PRN made to Respondent in May 1993 that Respondent refrain from practicing medicine until he had undergone inpatient treatment at The Menninger Clinic and the same request it had made in August 1993. PRN concluded, among other things, that Respondent had violated the Final Order; that it (PRN) was unable to monitor Respondent, as to refraining from practicing medicine; that Respondent continued to need inpatient therapy at The Menninger Clinic; and that Respondent presented a danger to the public health, safety, and welfare. On July 20, 1994, Dr. Burton Cahn, M.D., a psychiatrist, wrote a letter addressed to "To Whom It May Concern," stating that Respondent "does not represent either a danger to himself or to others." Prior to writing the letter, Respondent was Dr. Cahn's patient from November 1989 through 1991. Dr. Cahn never conducted any diagnostic tests, such as the MMPI, on Respondent. Also, Dr. Cahn is a personal friend of Respondent. By letter dated September 6, 1994, the Compliance Officer for the Board of Medicine notified Respondent that he had complied with all of the requirements of the Final Order dated January 8, 1992. The letter further reminded Respondent of the restriction that a licensed female healthcare professional was required to be present when he treated or examined female patients. However, the Compliance Officer issued the letter in error. She had failed to communicate with the PRN, prior to issuing the letter, to determine whether Respondent had completed the requirements as to the PRN, such as being evaluated by a PRN- approved psychiatrist and complying with the recommendations of the psychiatrist. If the Compliance Officer had communicated with the PRN, she would have been informed by PRN that Respondent had not completed its requirements. Further, legal counsel with the Agency for Health Care Administration (AHCA)3 informed PRN that Respondent was under no obligation to comply with PRN's request of May 1993 and August 1993 to refrain from practicing medicine until he undergoes inpatient treatment at The Menninger Clinic. Moreover, the legal counsel further informed PRN that Respondent was only required to comply with the recommendations of the psychiatrist. By letter dated November 1, 1995, to the legal counsel of AHCA, the PRN again expressed, among other things, its concern that Respondent was capable of manipulating his staff when treating or examining a female patient. The PRN advised the legal counsel that it considered Respondent's impairment to affect his ability to practice medicine and that his impairment "constitutes an immediate, serious danger to the public health, safety and welfare." Subsequently, on February 22, 1996, the Administrative Complaint in the present case was filed by the Petitioner. At that time, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that Respondent was suffering from a psychological illness. Moreover, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that inpatient therapy was required. Dr. Rosen was unable to make any diagnosis or recommendations. Even though Respondent presented himself for inpatient admission, he was not admitted due to his denial that he had a psychological illness that required therapy; without Respondent admitting that he had a psychological problem, no treatment could be effectuated. Without treatment, Respondent remained ill; he suffered from a psychological illness. Without treatment, Respondent was a danger to his female patients and was unable to practice medicine with reasonable skill and safety to his patients by reason of illness.4 After the filing of the Administrative Complaint in the present case, the parties agreed that Respondent would be evaluated by a psychiatrist acceptable to the PRN. After consideration, including the location of Respondent's practice, which was on the East Coast, and Respondent's wish for a psychiatrist on the East Coast to conduct the evaluation, Dr. Ronald Shellow, a psychiatrist in Miami, was recommended by PRN, but PRN also indicated that Dr. Shellow was not an expert in the behavioral disorder with which Respondent had been diagnosed by other PRN approved psychiatrists. On August 7, 14, and 23, 1996, Dr. Shellow conducted an evaluation of Respondent, with each session lasting one hour. Dr. Shellow administered the Bender-Gestalt and the House-Tree- Person psychological tests. In his report dated September 2, 1996, Dr. Shellow states, among other things, that Respondent related to him the incident involving the female patient, on which the Administrative Complaint in the present case was filed, but that Respondent "would not say whether this had happened with other patients." Clearly, Respondent was not being forthright with Dr. Shellow because, prior to this incident, other incidents involving female patients had occurred. This additional information was not available to Dr. Shellow for his consideration in his evaluation. Again, Respondent was withholding information. In his evaluation, Dr. Shellow opined, among other things, that Respondent was not suffering from a psychiatric disturbance and that Respondent had no psychiatric disorder; however, based on Respondent's history, Dr. Shellow Respondent did have a dependent personality disorder. Dr. Shellow concluded, among other things, that the reoccurrence of the incident with another female patient was "unlikely" as long as Respondent's marriage remained "satisfying" and he continued to "see his psychiatrist on a quarterly basis." Dr. Shellow indicated that Respondent's present psychiatrist, Dr. Cahn, concurred with him. Subsequently, Dr. Shellow received a copy of the evaluation conducted by The Menninger Clinic from Dr. Cahn. Having reviewed The Menninger Clinic's evaluation, which revealed past encounters by Respondent with his female patients, by letter dated November 14, 1996, to Dr. Pomm of the PRN, Dr. Shellow notified PRN that his opinion had not changed. Dr. Cahn had begun treating Respondent again in 1995. His opinion remained, and remains, unchanged. Dr. Cahn is of the opinion that, even though Respondent was suffering from a personality disorder when he first began treating Respondent in 1989, Respondent no longer suffers from a psychological illness and, therefore, requires no psychiatric treatment.5 Dr. Cahn agrees that a personality disorder is a psychological illness. Considering the proof, the opinions of Dr. Cahn are less than persuasive, and it is concluded that Respondent continues to suffer from a psychological illness.6 Furthermore, Dr. Shellow expressed in his letter dated November 14, 1996, that he was of the opinion that Respondent could practice medicine with skill and safety under certain conditions. Dr. Shellow stated that if Respondent "is to continue practicing medicine with skill and safety, he should be in psychotherapy on some sort of sontinuing [sic] basis, and he should be supervised to prevent these actions from occurring again." Regarding the monitoring of Respondent's practice, Dr. Shellow was of the opinion that any monitoring should be devised and decided upon by the PRN and that, with Respondent being in his 60's, Respondent should enter into a contract with the PRN for as long as he practices medicine. Also, Dr. Shellow opined that some way should be developed to use Respondent's skills, but that, if Respondent prevented anyone in his office from reporting to the PRN, Respondent was not practicing medicine with skill and safety. At no time did Dr. Shellow receive or review the evaluations of Drs. Banard, Reading or Edgar. On December 2, 1996, AHCA filed an Order of Emergency Restriction of License against Respondent. His medical practice was restricted as to his treating or examining female patients, monitoring by PRN, and entering into a contract with PRN. On December 30, 1996, Respondent executed an advocacy contract with PRN. In the contract, Respondent designated, among other things, Dr. Cahn as his treating psychiatrist, with whom he would have quarterly psychiatric treatment meetings; Dr. Michael Langone, M.D., as his supervising practitioner; and Gretchen Nelson, a registered nurse, as the female chaperon during his treatment or examination of female patients. Dr. Cahn is known to the PRN. He has been a referral psychiatrist for PRN for several years. Nowhere on the advocacy contract was there a provision to identify the relationship of the supervising practitioner and the chaperon to the physician who is being monitored. Dr. Langone was an associate and employee of Respondent. Nurse Nelson was an employee of Respondent. On January 16, 1997, PRN executed the advocacy contract. By letter dated February 4, 1997, PRN notified the legal counsel for AHCA that an advocacy contract had been entered into between it and Respondent. In March 1997, PRN experienced a problem as to the female chaperon, Nurse Nelson. The PRN telephoned Respondent's office to confer with Nurse Nelson. Upon speaking with Nurse Nelson, among other things, PRN learned that she was not aware of her responsibility as the female chaperon to the advocacy contract and that she was employed by Respondent. By letter dated March 24, 1997, PRN notified Respondent that it had contacted his office several times and had problems contacting the individuals indicated in the advocacy contract; that the contract needed to be reviewed with the individuals; and that the individuals would be receiving random monitoring telephone calls from PRN to access compliance with the contract. Further, PRN notified Respondent that copies of the contract mailed to the female chaperon and the office staff person designated to handout and collect the Patient Survey Form were returned, and PRN requested that Respondent make sure that the individuals receive copies of the contract. After discovering that Respondent had designated an associate and employee as the supervising practitioner, PRN was concerned that Dr. Langone may have a conflict of interest. Also, PRN discovered that Dr. Langone was leaving Respondent's practice. PRN decided to no longer approve Dr. Langone as the supervising practitioner. By letter dated June 2, 1997, PRN notified the legal counsel for AHCA that PRN had attempted to monitor Respondent's practice without success and that Respondent was currently not being monitored by PRN. Furthermore, PRN stated that Respondent, in its opinion, continued to require monitoring by it. Respondent has not been charged with a violation of the advocacy contract. PRN has not notified the Petitioner that Respondent was not in compliance with the contract. Neither Dr. Cahn nor any individual designated in the contract has notified the PRN that Respondent was not in compliance with the contract. Dr. Cahn, Respondent's approved treating psychiatrist, is of the opinion that by having a licensed female professional present when Respondent examines or treats a female patient, Respondent can practice medicine with reasonable skill and safety. Dr. Pomm of PRN is of the opinion that, with a monitoring contract in place and compliance with the contract, Respondent can practice medicine with reasonable skill and safety. However, Dr. Pomm is also guarded as to the success of any future contract due to Respondent's history of manipulation and personality disorder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent violated Subsection 458.331(1)(s), Florida Statutes, in Count II of the Administrative Complaint. Dismissing Count I of the Administrative Complaint. Suspending Respondent's license until he is able to demonstrate that he is able to practice medicine with reasonable skill and safety. Placing Respondent on probation, under terms and conditions deemed appropriate by the Board of Medicine, for five years following the removal of the suspension. Imposing an administrative fine of $2,500. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue Whether Petitioner, Michele Edwards, was subject to an unlawful employment practice by Respondent, Publix Supermarket, based on her race, 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. color, sex, and national origin, as well as by retaliation, in violation of the Florida Civil Rights Act.
Findings Of Fact Publix is a supermarket chain and food retailer with over 800 locations in the State of Florida. Publix hired Petitioner on September 23, 2014. Petitioner resigned on January 11, 2019. Petitioner spent all but the last month of her Publix career working at Store No. 1215, located in Venice, Florida. Petitioner is of East Indian (Asian) descent. She also has a dark complexion. Publix initially hired Petitioner as a part-time cashier working up to 35 hours a week. As a part-time cashier, Petitioner asserts that she delivered premier customer service. Publix does not dispute that Petitioner consistently provided quality services to its customers. After serving as a cashier for approximately six months, Petitioner’s responsibilities expanded to include working a few hours a week at the “Apron’s” station. The Apron’s is a small kiosk, with a counter, situated inside the store. There, a Meals Clerk cooks, prepares, and presents dining 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner also filed a number of post-hearing exhibits, which were not accepted into evidence and were not considered when drafting the Recommended Order. The undersigned’s factual findings are based solely on the evidence and testimony admitted during the final hearing. and meal samples for Publix customers. The Apron’s for Store No. 1215 is equipped with two refrigerated cases, a microwave, and an oven. Petitioner started working at the Apron’s by filling in for and supporting the Apron’s full-time Meals Clerk, Eileen Williford. Only one Publix associate worked at the Apron’s at a time. Therefore, Ms. Williford and Petitioner never occupied the Apron’s during the same hours. Because Apron’s associates never worked at the same time, they communicated with each other through handwritten notes left between shifts. These notes typically concerned the preparation of Apron’s recipes, as well as the Apron’s station’s food supplies, organization, and the condition of the Apron’s appliances and cutlery. As described by Petitioner, the note taking/leaving system with Ms. Williford did not go well. At the final hearing, Petitioner presented photocopies of a number of handwritten notes she received during her time in the Apron’s. Petitioner did not care for the context or implications from several of Ms. Williford’s messages. Between October 2017 and April 2018, Ms. Williford commented on the lack of cleanliness of the microwave and oven due to Petitioner’s alleged inattentiveness, as well as on Petitioner’s inferior cooking and preparation techniques. Ms. Williford also instructed Petitioner how to set up the kiosk. Petitioner found Ms. Williford’s notes condescending and rude. They made her feel “belittled” and “like an idiot.” Petitioner further believed that Ms. Williford falsely accused her of leaving the Apron’s in a messy condition. (Petitioner also left notes for Ms. Williford complaining that she found the Apron’s in an ill-kept condition when she assumed her shift.) The notes Ms. Williford and Petitioner exchanged did not relate to Petitioner’s race, color, or national origin. Towards the end of 2017, Petitioner informed Wayne Bargdill, the Store Manager for Publix Store No. 1215, of the communication issues she was experiencing with Ms. Williford. Mr. Bargdill became the Store Manager of Store No. 1215 around April 2016. He remained the Store Manager until Petitioner departed the store in December 2018. Petitioner reported to Mr. Bargdill that she did not appreciate Ms. Williford’s “unwelcomed” comments. Petitioner further expressed that the note-leaving process was very stressful, and she did not wish to continue the practice. Petitioner also placed the blame on Ms. Williford for leaving the Apron’s space in a disorderly condition. Following Petitioner’s complaints, Mr. Bargdill recognized that Petitioner and Ms. Williford were not getting along. Mr. Bargdill characterized the dispute as two employees “bickering” about the cleanliness of appliances and dishes. To address the situation, Mr. Bargdill expressly directed Petitioner and Ms. Williford to cease all note passing. In addition to the note issues, Petitioner alleged that between October 2016 and March 2018, she heard Ms. Williford direct several offensive statements at Publix customers. Petitioner accused Ms. Williford of referring to one Middle Eastern customer as a “Dot-head,” and that another customer “reeked of curry.” Petitioner further testified that she had heard from another person in the store (but did not witness) that Ms. Williford told an Asian customer that the Apron’s “is not a buffet.” At the final hearing, Petitioner claimed that Ms. Williford made at least five such comments about Publix’s customers. On April 25, 2018, Petitioner met with Mr. Bargdill to discuss Ms. Williford’s insulting comments about Indian and Asian customers. Petitioner expressed that she found these remarks offensive because of her own Asian background. Mr. Bargdill confronted Ms. Williford about Petitioner’s allegations. Ms. Williford denied making any such disparaging statements to or about Publix customers. Nevertheless, Mr. Bargdill took the opportunity to instruct Ms. Williford not to make any comments that could be interpreted as racially derogatory or inflammatory. Mr. Bargdill also located and spoke to Vickie Va, an alleged target of one of Ms. Williford’s comments. He apologized for any untoward treatment by store employees. Petitioner called Ms. Va to testify at the final hearing. Ms. Va, however, hastily and repeatedly voiced that she “did not recall” hearing any such statements. Also during the April 25, 2018, meeting, Mr. Bargdill took the opportunity to speak with Petitioner about her interest in promotion opportunities. At that time, Mr. Bargdill believed that the store’s Deli Department offered Petitioner the best chance to obtain full-time employment. Therefore, Mr. Bargdill suggested that Petitioner consider transferring to a current opening in the Deli. Mr. Bargdill explained to Petitioner that the transition into a full-time job with Publix would require her to submit a Registration of Interest form (“ROI”). In April 2018, Petitioner was still classified as a part-time cashier. Consequently, Petitioner had to transfer into a full-time position, in order to work a full-time schedule. At the final hearing, Mr. Bargdill relayed that completing the ROI process takes approximately four weeks. After the associate fills in the ROI, the store manager (Mr. Bargdill) forwards it to the store’s district manager and requests a change in the associate’s job classification. Once the ROI is approved, the associate is authorized to move to a full-time position. Petitioner, however, was reluctant to accept Mr. Bargdill’s proposal. She was uncertain that she wanted to take on a full-time schedule. Consequently, Petitioner told Mr. Bargdill that she was not interested in pursuing the Deli position at that time. On the other hand, Petitioner expressed that she enjoyed working in Apron’s and would consider becoming a full-time Apron’s Meals Clerk. Mr. Bargdill informed her, however, that Store No. 1215 did not have an opening for another full-time Apron’s employee. Nevertheless, following her discussion with Mr. Bargdill, Petitioner decided to complete an ROI for a Deli Clerk position. She filled out an ROI during the April 25, 2018, meeting. Mr. Bargdill subsequently forwarded her ROI to the district manager. Petitioner’s ROI became effective on May 26, 2018, at which point Mr. Bargdill was able to formally offer Petitioner a path to full-time employment in the Deli Department. On April 11, 2018, while Petitioner struggled in working with Ms. Williford, Petitioner also received her Associate Performance Evaluation for the period of October 2017 through February 2018. (Publix prepares an evaluation for each associate every six months.) Petitioner’s Performance Evaluation scored her on 13 factors. Her supervisor also commented on each score. In the Publix evaluation rating scheme, Role Model is the top level, followed by Exceeds Expectations, Meets Expectations/Successful, Needs Improvement, and then Unacceptable. For this evaluation, Petitioner graded out as Exceeds Expectations. Petitioner was disappointed that she did not receive the top rating of Role Model, which she scored in her previous Performance Evaluation. Petitioner’s supervisor, Desmond James, completed her evaluation. At Petitioner’s request, Mr. Bargdill and Mr. James met with her to review her evaluation. During their meeting, Petitioner expressed that that she disagreed with two comments that Mr. James wrote regarding her performance. Petitioner objected to the sentence in the “Associate Relations” factor that she should “[w]ork on dealing with conflict calmly, directly, and effectively.” Petitioner was also bothered by a line Mr. James included in the “Work Space Organization” factor which stated, “just make sure there is no room for other [sic] to have to pick up left over slack [at the Apron’s counter].” Petitioner believed that these statements made her look like a bad employee and implied that she needed to work on handling confrontation in a more effective manner. After hearing her objections, Mr. Bargdill agreed to amend Petitioner’s Performance Evaluation by marking through the line “just make sure there is no room for other [sic] to have to pick up left over slack.” Mr. Bargdill wrote next to it, “This last line should not have been put in the evaluation.” Petitioner then requested that Mr. Bargdill submit her amended Performance Evaluation to Publix corporate to be included in her official record. Mr. Bargdill responded that, because his strikethrough did not change her overall rating of Exceeds Expectations, he was not inclined to forward the revised evaluation to Publix corporate. Instead, he intended to maintain her Performance Evaluation in her “local” personnel records at Store No. 1215. Petitioner was not satisfied with Mr. Bargdill’s decision. Despite her reduced rating, however, at the bottom of her evaluation she wrote, “thank you for everything!” Petitioner explained that she wanted Publix to know that she was grateful for her employment opportunity. Based on her Exceeds Expectations rating, Petitioner received a $.25 increase in her hourly wage to $12.25 an hour. Her raise became effective on March 24, 2018. Also during that time, on or about April 20, 2018, Petitioner emailed a formal complaint alleging “Racial Harassment and Discrimination” at the hands of Ms. Williford and two other Publix associates, to Neil Vafeas, a Publix Retail Associate Specialist. In his role, Mr. Vafeas serves as a human resources investigator or specialist. He is the human resources contact person for Publix’s territory from Bradenton to North Fort Myers, which includes Store No. 1215. As part of his responsibilities, Mr. Vafeas serves as the contact person for Publix associates should they ever feel mistreated, harassed, discriminated against, or have concerns or questions related to their employment. Petitioner followed her email with a phone call to Mr. Vafeas on or about April 23, 2018. During her call, Petitioner reported the offensive statements she heard from Ms. Williford. Petitioner specifically told Mr. Vafeas that Ms. Williford call a customer a "Dot head" and declared that another customer "reeked of curry." Petitioner also conveyed her displeasure with her 2018 Performance Evaluation. Mr. Vafeas was very concerned with Petitioner’s complaints. After receiving Petitioner’s phone call, Mr. Vafeas contacted Mr. Bargdill. Mr. Vafeas instructed Mr. Bargdill to speak with Ms. Williford regarding Petitioner’s complaints, and then set up a separate, in person, meeting between Mr. Bargdill, himself, and Petitioner. On May 17, 2018, Petitioner met with Mr. Bargdill and Mr. Vafeas. At the final hearing, Mr. Vafeas explained that his primary goal entering the meeting was to discuss: 1) Petitioner’s complaints about her Performance Evaluation from April 2018; 2) Petitioner’s conflict with Ms. Williford, and 3) full-time job opportunities available for Petitioner at Publix. In addition to these issues, Mr. Vafeas recalled that during their meeting, Petitioner raised further concerns, including disparaging comments Petitioner heard Ms. Williford make about Publix customers, and a comment another Publix employee made about Petitioner’s dog. Regarding Petitioner’s Performance Evaluation, Mr. Vafeas remembered that Petitioner believed that she was being held accountable for Ms. Williford’s messes at the Apron’s. Mr. Vafeas testified, however, that Petitioner’s evaluation scores were very close to those she received in her prior evaluation in November 2017. (In her November 2017 evaluation, Petitioner earned the top “Role Model” rating by one point.) Mr. Vafeas further reflected that Petitioner’s April 2018 evaluation scores were justified, and no score appeared improper. Mr. Vafeas also explained that Petitioner’s rating of Exceeds Expectations (as opposed to Role Model) did not impact her current or prospective rate of pay. Regarding the exchanging of notes at the Apron’s, Mr. Vafeas got the impression that Mr. Bargdill’s decision to cease all note passing resolved the matter. He also understood that Mr. Bargdill had counseled Ms. Williford about her alleged use of offensive language. Mr. Vafeas urged Petitioner to report any further conflicts to Mr. Bargdill. Finally, Mr. Vafeas recounted that the three discussed, at length, the full-time openings available at Store No. 1215. Petitioner repeated her desire to remain an Apron’s Meals Clerk. However, because the store did not have a full-time opening in that position, Mr. Vafeas and Mr. Bargdill informed Petitioner that they could look at other stores for a position as a full-time Apron’s specialist. If they found an opening, Petitioner could request a transfer. Mr. Vafeas and Mr. Bargdill reiterated to Petitioner that the best full- time opportunity at Store No. 1215 was in the Deli Department. Petitioner remained noncommittal. She was concerned about the time commitment required to work a full-time schedule. Therefore, they concluded the meeting by leaving Petitioner to consider her next move. Petitioner remained in her part-time cashier/Apron’s position. At the same time that Petitioner was pondering her future with Publix, another associate at Store No. 1215, Debbie Bartels, a white female, approached Mr. Bargdill inquiring about full-time positions. Mr. Bargdill offered Ms. Bartels the same guidance and opportunity that he provided to Petitioner, that a full-time job was open in the Deli Department. Ms. Bartels jumped on the offer and quickly completed an ROI. In June 2018, Ms. Bartels began receiving the required training to transfer to a full-time Deli position. From June through August 2018, Ms. Bartels slowly accrued more training hours in the Deli. In September 2018, she officially became a part-time Deli clerk. Ms. Bartels transitioned to a full-time Deli associate on December 8, 2018. Also in June 2018, about a week after Ms. Bartels began training as a Deli Clerk, Petitioner informed Mr. Bargdill that she had decided to accept the opportunity to work in the Deli. Because Petitioner’s ROI was approved on May 26, 2018, Mr. Bargdill promptly arranged for Petitioner to receive the training required to assume a full-time Deli position. Mr. Bargdill explained that the Deli is the most demanding department in the store because of the large volume of responsibilities that must be managed on a day-to-day basis. Consequently, Publix requires Deli Clerks to undergo extensive training. Once an associate completes the training, if they are productive and handle the Deli environment well, Publix will look to promote them to a full-time Deli Clerk. Training for the Deli Department required Petitioner (and Ms. Bartels) to complete a computer-based course to learn Deli procedures. She was also scheduled time to familiarize herself with the different Deli sections and services. This training included slicing cheeses and meats, as well as working in the sub shop, the kitchen, and the back of the Deli. Over the summer of 2018, Petitioner continued her assignment as a part-time cashier, while also working several hours a week in the Deli Department to gain experience. Finally, on August 11, 2018, Petitioner officially moved into a part-time Deli position. Based on the progress of her training, Petitioner was scheduled to become a full-time Deli Clerk in December 2018 (the same schedule as Ms. Bartels). In October 2018, Petitioner received another six-month Associate Performance Evaluation covering the period of April 1 through September 30, 2018. Petitioner’s rating category, which included her time as a Deli Clerk in training, dropped from Exceeds Expectations to Meets Expectations/Successful. Petitioner’s inexperience working in the Deli was reflected in the “Tracking & Balancing Inventory” and “Merchandizing” factors, with explanations that Petitioner “[s]hows only a basic or limited understanding of tools and sometimes cannot apply information to work activities. Still in training.” Petitioner was given a 3 out of 9 rating in this factor. For the “Associate Relations” factor, the evaluation recorded that Petitioner was “[f]riendly and considerate of other associates. Gets along with most associates. Shows willingness to assist others in accomplishing work and serving customers when needed.” Petitioner received a 5 out of 9 rating in this factor. Even with a Meets Expectations/Successful rating, Petitioner received a pay raise of $.50 an hour up to $12.75. Her raise became effective on October 20, 2018. In September 2018, Mr. Bargdill became aware of a conflict in the Deli Department between Petitioner and Lisa Stewart, another Deli associate. Ms. Stewart had worked in the Deli for approximately three years prior to Petitioner’s transition. She had been assigned to help train Petitioner on Deli procedures. Petitioner complained to Mr. Bargdill that Ms. Stewart had bullied her and refused to train her. At the final hearing, Mr. Bargdill confessed that Ms. Stewart can be “difficult” to work with. It became clear to him that Petitioner and Ms. Stewart had a tense working relationship that had created issues during Petitioner’s training. He counselled both Petitioner and Ms. Stewart about their personality conflict, and he removed Ms. Stewart as Petitioner’s Deli trainer. On November 20, 2018, however, another conflict erupted between Petitioner and Ms. Stewart. This time, Petitioner alleged that Ms. Stewart pushed her. Petitioner immediately reported the encounter to Mr. Bargdill. She explained to him that that morning, she had heard Ms. Stewart loudly complain about the smell in the Deli. Petitioner believed that Ms. Stewart’s comment was specifically aimed at her. The two women exchanged words. Shortly thereafter, Petitioner claimed that Ms. Stewart pushed her aside as she walked past. Mr. Bargdill promptly investigated the incident. He found both women visibly upset, as if they had just endured a heated encounter. He confronted Ms. Stewart and counseled her regarding Petitioner’s accusations. Then, to defuse the situation, Mr. Bargdill sent both Petitioner and Ms. Stewart home for the rest of the day. At that point, Mr. Bargdill considered the situation resolved. Petitioner, however, was not ready to let the matter go. She felt that Mr. Bargdill treated her unfairly because Ms. Stewart had started the dispute. On her way home, Petitioner called the Sarasota County Sheriff’s Office and reported that Ms. Stewart had committed a battery. The next day when Ms. Stewart returned to work, Mr. Bargdill called her into his office. He informed her that a sheriff’s officer had appeared at the store to investigate the incident. (Ultimately, the sheriff’s officer concluded that, “There is not [sic] probable cause a battery occurred” because Petitioner “did not have any injuries to show a battery occurred.”) Afterwards, Mr. Bargdill took steps to avoid any future issues between Ms. Stewart and Petitioner. He allowed Petitioner to remain in the Deli Department, but he moved Ms. Stewart and stationed her in the Apron’s. Ms. Stewart never returned to the Deli while Petitioner remained at the store. Neither did she have any further encounters with Petitioner. According to Ms. Stewart, who testified at the final hearing, it was Petitioner who initiated the confrontation by approaching her and declaring that Ms. Stewart had insulted her. Ms. Stewart denied making any offensive statements to Petitioner. She also denied making any physical contact with Petitioner. While Mr. Bargdill may have resolved the issue between Petitioner and Ms. Stewart, the situation appears symptomatic of a larger conflict between Petitioner and the rest of the Deli staff. At the final hearing, Mr. Bargdill testified that the Deli Department maintained a very collegial working environment prior to Petitioner’s arrival. However, following her transfer, the entire demeanor of the Deli changed. Mr. Bargdill recounted that morale in the Deli slowly deteriorated in October and November 2018. During this time, he testified that he received a number of complaints from Deli associates about Petitioner’s conduct. Mr. Bargdill stated that as many as seven Deli associates approached him bemoaning Petitioner’s behavior. Specifically, Mr. Bargdill described the following: Tracey Ranallo complained to him that Petitioner was treating associates rudely and brought down the overall morale of the Deli. Ms. Bartels relayed to him that Petitioner was inquiring about other associates’ personal information and was looking into their backgrounds. Ms. Bartels also declared that Petitioner called her a derogatory name, bullied her, and made her cry. Anna Forino also informed him that Petitioner was asking for background information on other associates. Ms. Forino further asserted that Petitioner made her fear for her safety. On November 29, 2018, Ms. Forino made a formal discrimination and harassment complaint against Petitioner, which Mr. Bargdill forwarded to Mr. Vafeas. Tony Howard submitted a written complaint describing the overall dynamic of the Deli Department. Mr. Howard felt that Petitioner was rude to fellow associates. He also alleged that Petitioner called an associate (Ms. Bartels) a derogatory name. Mr. Howard further chronicled another incident from November 2018, when Petitioner overheard two Deli Clerks discussing a movie that depicted the violent death of a woman. Petitioner apparently envisioned herself as the subject of the discussion, and then complained to Publix management that she feared for her personal safety. Mr. Howard also contacted Mr. Vafeas around November 29, 2018, about Petitioner’s behavior. Mr. Howard represented that he was complaining on behalf of the entire Deli Department. Mr. Bargdill investigated each complaint. Mr. Bargdill ultimately determined that the morale in the Deli had fallen “unbelievably” off track, and the Deli associates were no longer working as a harmonious team. When Petitioner was scheduled, the other Deli associates felt like they were “walking on pins and needles,” and they did not trust her. Based on his investigation, Mr. Bargdill believed that he had verified that Petitioner was asking other Deli associates for their personal information, which made them feel tense and uncomfortable. In addition, he found that several employees (Ms. Stewart and Ms. Bartels) credibly stated that Petitioner had made offensive comments while working in the Deli. Mr. Bargdill concluded that Petitioner was the source of the conflict in the Deli Department. At the final hearing, he testified that he never received these types of complaints in the Deli prior to Petitioner’s time there. Mr. Vafeas testified that he also received complaints about Petitioner’s behavior in November 2018. Although not produced at the final hearing, Mr. Vafeas credibly attested that he received written statements from two of Petitioner’s co-workers. Mr. Vafeas confirmed that Mr. Howard contacted him about Petitioner. After reading Mr. Howard’s complaint, Mr. Vafeas was concerned that Petitioner was making the Deli environment confrontational and a hostile place to work. Mr. Vafeas further relayed that Ms. Forino reported to him that Petitioner felt that people of different sizes and colors were repulsive. In addition, she repeated what she told Mr. Bargdill, that Petitioner was gathering information to conduct background checks on Deli associates. Mr. Vafeas concluded that Store No. 1215 Deli associates felt that Petitioner was mean to them, and that some were afraid for their safety. Mr. Vafeas spoke to Mr. Bargdill about the complaints. Thereafter, in early December 2018, Mr. Vafeas, Mr. Bargdill, and the Deli Manager, Bruce Fowler, prepared a Counseling Statement for Petitioner summarizing the complaints from Petitioner’s co-workers. The Counseling Statement recorded that “multiple [Deli] associates have lodged complaints with management and HR regarding [Petitioner].” The Counseling Statement further reported that Publix management had received information that Petitioner “called an associate a bitch,” “twists the truth in order to get associates in trouble,” and made derisive comments about “people of different sizes and color.” In addition, the Counseling Statement stated that Petitioner was “rude,” “cause[d] unnecessary conflict,” and that her “daily interaction with her coworkers has caused them to feel uncomfortable and has disrupted the harmony and positive work environment which the Deli enjoyed prior to her arrival.” The Counseling Statement included an “Improvement Required” section which stated that Petitioner “must treat all of her coworkers with dignity and respect and avoid creating unnecessary or destructive conflict.” The document also warned Petitioner in the “Failure to Improve” section that if she “continues to create unnecessary or destructive conflict and treat coworkers improperly it will result in disciplinary action up to an including suspension or discharge.” On December 13, 2018, Mr. Bargdill met with Petitioner and read to her the allegations contained in the Counseling Statement. Mr. Bargdill hoped that the counseling session would help Petitioner build and maintain positive working relationships with her Publix co-workers going forward. At the final hearing, Petitioner vehemently denied any of the wrongful conduct alleged in the Counseling Statement. Petitioner also strongly objected to, and disavowed, the implication that she was a racist. Petitioner further declared that the Counseling Statement was based on unverified statements, and the complaints from other Deli associates were “fabricated nonsense.” Petitioner also expressed that she was devastated when she received the Counseling Statement. She declared that the statement caused her “emotional damage” and “ruined her life.” Petitioner believed that the Counseling Statement would create a black mark on her record that would have a disastrous impact on all her future employment opportunities. Prior to serving Petitioner with the Counseling Statement, Mr. Vafeas and Mr. Bargdill discussed the best way to handle the numerous complaints from the other Publix associates. Mr. Vafeas was concerned that the conflict could not be remedied if Petitioner remained at Store No. 1215. Therefore, he determined that the most appropriate response to relieve the tension in the Deli Department was to transfer Petitioner to another Publix store. Mr. Bargdill agreed. Neither Mr. Vafeas nor Mr. Bargdill believed that Petitioner would change her behavior, and they felt that the situation had escalated beyond the point where the conflict could be eliminated. They also thought that a move would provide Petitioner the opportunity for a fresh, hopefully successful, start, and allow her to form positive relationships with new co-workers. On December 13, 2018, Publix transferred Petitioner from Store No. 1215 to Store No. 384. Store No. 384 is located three to four miles from Store No. 1215. Petitioner was given the same position (part-time Deli associate) with no loss of work hours (34 to 35 hours a week), pay ($12.75 an hour), benefits, promotion opportunities, or status. Petitioner firmly objected to the transfer. She did not want to leave Store No. 1215. Petitioner claimed that she had to drive farther to work. At the final hearing, however, Petitioner relayed that her home is actually closer to Store No. 384. Petitioner worked approximately 35 hours (a part-time schedule) during her first week at Store No. 384. Mr. Bargdill did not have any involvement with Petitioner’s career after she was transferred out of Store No. 1215. On January 11, 2019, Petitioner resigned from Publix to take another job. Petitioner explained that in November 2018, she applied for a job with another local business. Petitioner testified that part of her motivation to seek new employment was that she believed her days at Publix were numbered following her November 2018 confrontation with Ms. Stewart. Petitioner interviewed for her new job on December 6, 2018. She received a job offer on January 10, 2019, and resigned from Publix the next day. Petitioner expressed that she makes more money in her new place of employment. Based on her testimony at the final hearing, Petitioner raises several causes of action in her discrimination complaint. First, Petitioner contends that Publix, through Mr. Bargdill, discriminated against her, based on her protected class, when she expressed an interest in working full-time. The testimony establishes that Mr. Bargdill offered Petitioner a full-time position in the Deli Department during their meeting on April 25, 2018. Petitioner alleges that Mr. Bargdill rescinded this offer in May or June 2018, and instead filled the position with a white employee (Ms. Bartels). Petitioner further complains that Mr. Bargdill “looked the other way” when Ms. Williford, Ms. Stewart, and other co-workers abused and harassed her. (Ms. Williford and Ms. Stewart are also white.) Petitioner also asserts that Mr. Bargdill retaliated against her based on her pursuit of a charge of discrimination with the Commission. On August 6, 2018, in light of Mr. Bargdill’s invitation to Ms. Bartels to transfer to the Deli the previous June, Petitioner filed a formal Employment Complaint of Discrimination with the Commission. In her complaint, Petitioner charged that she was “a dark skinned, East Indian, and Asian, female” who had been “discriminated against based on race, color, national origin, sex, and retaliation.” Petitioner claims that, following her Complaint of Discrimination, Publix took several adverse employment actions against her. These actions included, 1) her Performance Evaluation issued on October 11, 2018, in which she was rated as Meets Expectations/Successful, instead of Role Model or Exceeds Expectations, 2) the Counseling Statement in December 2018, and 3) the decision to transfer her to another Publix store. Finally, Petitioner alleges that Publix created a hostile work environment. Petitioner charges that Publix management did not sufficiently address or prevent the disparaging comments and harassment aimed at her by other associates. Petitioner also complains that the Store No. 1215 management allowed her Publix co-workers to learn about her personal affairs without her consent. Petitioner is particularly upset that Publix personnel may have heard about her discrimination complaint to the human resources department, as well as her complaint about being pushed to the Sarasota County Sheriff’s Office. In response to Petitioner’s claims of discrimination, Mr. Bargdill persuasively testified that he never rescinded his offer for Petitioner to transfer to a full-time Deli position. On the contrary, Mr. Bargdill convincingly attested that the Deli position remained open until Petitioner requested the job in June 2018. Mr. Bargdill further credibly refuted Petitioner’s accusation that he selected Ms. Bartels for the Deli instead of Petitioner, or that Ms. Bartels filled the only Deli opening. Mr. Bargdill cogently explained that Ms. Bartels applied for the Deli position at the same time as Petitioner, and both women were equally allowed to transfer into the Deli Department at the time each accepted the offer. Further, Mr. Bargdill credibly voiced that after Petitioner left his store’s Deli Department, the working environment changed for the better. As he described it, he observed the Deli associates laughing and helping each other, and the camaraderie noticeably improved. Eileen Williford testified at the final hearing and described her time working at the Apron’s with Petitioner. Ms. Williford readily acknowledged that she did not care for Petitioner. She stated that their conflict centered on the Apron’s cleanliness. Ms. Williford asserted that daily she would receive “petty” notes from Petitioner regarding the condition of the Apron’s station, its appliances, and supplies. Ms. Williford was also aware that Petitioner reported her to Mr. Bargdill. She recounted that she refused to speak with Mr. Bargdill about Petitioner’s complaints because she found the situation too stressful. Ms. Williford agreed that all note passing ceased between her and Petitioner after Mr. Bargdill intervened. She denied that Publix (Mr. Bargdill) ever formally disciplined her regarding the incident. Regarding Petitioner’s other complaints, Ms. Williford denied telling a Publix customer that the Apron’s “is not a buffet.” She further disputed that she voiced that a customer “reeked of curry.” Finally, Ms. Williford denied that she ever made any statement to Petitioner regarding her race, national origin, gender, or the color of her skin. To support her case, Petitioner called several witnesses. Her first witness, Philippe Canlers, testified that during his time with Publix, he also had a personality conflict with Ms. Williford. Mr. Canlers described Ms. Williford as a “bully” who intimidated her co-workers. He relayed that Ms. Williford visited him occasionally while he worked at the Apron’s or in the meat department, and she would give him a “rough time.” He was also familiar with her habit of leaving “nasty” notes. Mr. Canlers stated that he talked to the store managers about Ms. Williford’s offensive conduct. But, he never saw Publix address any of his complaints. He felt that management was just willing to accept her behavior. Mr. Canlers also described an incident in May 2018 when a store manager announced that a Publix Regional Director was coming to investigate Petitioner’s complaint about Ms. Williford. Mr. Canlers declared that this manager publicly discussed the existence of this investigation in the presence of Publix employees and customers. Mr. Canlers expressed that he believed that Petitioner’s complaint was her “personal affair” and should not have been disclosed to people who did not need to know. Danielle Goldman worked with Petitioner at Publix. They became friends. Ms. Goldman heard Christina Zito, a Store No. 1215 customer service manager, imply that Petitioner had a drinking problem. Ms. Goldman was also aware that Petitioner had an issue with Ms. Stewart when she worked in the Deli Department. Petitioner called Ms. Zito to the final hearing to address her role in Petitioner’s ill-treatment. Ms. Zito transferred to Store No. 1215 in May 2018. She supervised Petitioner when Petitioner worked as a part-time cashier. Ms. Zito testified that she initially found Petitioner very talkative and “bubbly.” However, she soon noticed a change in her attitude. Petitioner gradually became less approachable. Ms. Zito learned of the incident between Petitioner and Ms. Stewart in November 2018 when she participated in the follow-up meetings between Mr. Bargdill and both Petitioner and Ms. Stewart. Ms. Zito explained that Mr. Bargdill met first with Ms. Stewart, during which he informed her of Petitioner’s assault accusation. Upon hearing the allegation, Ms. Zito recounted that Ms. Stewart became visibly upset. Ms. Stewart adamantly denied that she pushed Petitioner. Ms. Zito also provided a statement to the sheriff who investigated Petitioner’s complaint. The sheriff recorded in the Incident Report that Ms. Zito advised that Petitioner “has a history of falsely accusing co-workers of things that did not happen, and does not get along with most other employees.” Ms. Zito explained that she made the statement because she was aware of Petitioner’s past dispute with an Apron’s employee, as well as her ongoing issues with Deli associates and cashiers. Finally, Ms. Zito discussed the conversation with Ms. Goldman during which she mentioned Petitioner’s possible issue with drinking. Ms. Zito admitted that she commented on Petitioner’s use of alcohol. However, Ms. Zito expressed that she simply wanted to make sure Petitioner was doing alright. (At the final hearing, Petitioner steadfastly declared that she does not drink.) Desmond James served as Petitioner’s team leader and department manager in the Customer Service Department in the spring of 2018. He also supervised the Apron’s team. In addition, Mr. James authored Petitioner’s April 2018 Associate Performance Evaluation. At the final hearing, Mr. James did not recall meeting with Petitioner and Mr. Bargdill to review the evaluation. Neither did he remember ever discussing in front of a Publix customer Petitioner’s personal information or discussing the fact that Petitioner had submitted a complaint to the Publix human resources department. On the other hand, Mr. James confirmed that Ms. Williford did leave the Apron’s counter and sink in a messy condition. Finally, Petitioner called Brooke Treat with whom she had a good working relationship at Publix. Ms. Treat testified about a time when she overheard Ms. Williford announce that Petitioner did not clean the dishes at the Apron’s. Ms. Treat recounted that Petitioner calmly handled the situation. Ms. Treat was also aware of the incident that occurred on November 20, 2018, between Petitioner and Ms. Stewart. Ms. Treat was not in the store at the time. However, she communicated (texted) with Petitioner just after Petitioner was sent home. Ms. Treat recalled that Petitioner was shaken up by the episode. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Publix discriminated against Petitioner based on her race, age, national origin, or sex, or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Publix committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Michele J. Edwards, did not prove that Respondent, Publix, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 24th day of March, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 24th day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) John Bateman, Esquire Publix Supermarket, Inc. Post Office Box 407 Lakeland, Florida 33802 Michele Judith Edwards 3131 Galiot Road Venice, Florida 34293 (eServed) Christine E. Howard, Esquire Fisher & Phillips LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue for consideration in this case is whether the Respondent's license as a certified respiratory therapy technician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was the state agency in Florida responsible for the licensing and regulation of the respiratory therapy profession in this state, and Respondent was licensed as a respiratory therapy technician under license number TT 0004476. On January 17, 1990, the Advisory Council on Respiratory Care of the Board of Medicine entered an Order granting Respondent licensure as a respiratory therapy technician conditioned upon his passage of the licensure examination and, as pertinent here, "contingent upon his entering into and successfully participating in the Physicians Recovery Network (PRN) program." The Order also provided, "Successful participation shall require fulfillment of any requirements set by the PRN program." A copy of this Order was furnished to the Respondent shortly thereafter and he interposed no objection to the terms thereof. Just previous to that Order, Respondent had entered into an Advocacy Contract with the Impaired Practitioner Program of Florida, administered by the PRN, by which he agreed, inter alia, to participate in random urine drug and or blood screen programs through Dr. Krone within twenty-four hours of notification, and to contact the office of the PRN by monthly letter. It must be noted that the requirement to participate in random urine testing was not limited as to the number of tests Respondent would be required to undergo, and it also must be noted that the requirement to contact the PRN by monthly letter did not specify the content of the letter. However, Dr. Goetz, the Director of the program, indicates that in a conversation he had with Respondent at the time the contract was signed, he indicated to Respondent that he should advise the Network he had abstained from drug use during the period and was experiencing no difficulties in his work because of drugs. Respondent claims not to recall such a conversation, but it is found such conversation was likely in light of the purpose of the program. Nonetheless, Respondent did not file the required monthly letters with the Network though there is some evidence he did participate in the random testing required. The file maintained on Respondent by the Network, however, reveals he was somewhat "testy and obnoxious" in his dealing with Network personnel. In that regard, however, Respondent indicates he had what appears to be a personality clash with a Network representative, Mr. Westmoreland, and his attitude toward Network personnel may well be the result of Westmoreland's approach to Respondent. This does not excuse Respondent's use of gutter language and profanity in some of the oral and written communications he had with the Network, but there was, originally, no requirement in the contract for politeness. In September, 1990, when Respondent had not submitted the required written communications, he was contacted and reminded of his obligation. At that time, he gave some vague explanation for not complying, and as a result, the Network, on October 2, 1990, entered into a new contract with Respondent which, back dated to December 1, 1989, the date of the original contract, again included the requirement for random urine testing and monthly letters - identical to the requirements in the original contract. Thereafter, Respondent still failed to file the written communications until, in June, 1991, he sent in a short, caustic letter. Thereafter, in July, August and September, 1991, Respondent filed short one or two sentence letters which merely indicated the note was full compliance with the contract terms. In the letter sent in by Respondent in October, 1991, he added the comment he had never been chemically dependent on any substance. On November 19, 1991, Ms. King, for Dr. Goetz, advised Respondent in writing of his responsibility to enter and successfully participate in the program of the PRN, and that unless he contacted the Network within seven days to present his proposal to cooperate in meeting the terms of the contract, it would be reported to the Respiratory Council that he had not successfully cooperated in their program. The letter does not tell Respondent wherein he has been delinquent, however, and only by implication asserts his lack of successful cooperation. In response to that letter, on December 4, 1991, Respondent wrote a scathing indictment of the tactics employed against him by Network personnel, specifically Mr. Westmore [sic]. After reiterating his contention that he has never taken drugs for any purpose and that his conviction on the possession charge was, at least in part, because of his race, in sometimes gross language he indicated his frustration with the program and his desire to be taken off it if it was the Council's intention to keep him on it for the rest of his life. Upon receipt of that letter, Dr. Goetz, on behalf of the Network, advised the Respiratory Council by letter that the Network had been unable to successfully monitor Respondent in its program, and offered to forward background information to support that conclusion. It would appear that upon the receipt of that information, the Council contacted the Department's legal section and, after a review of the file by that agency, was advised that Respondent had not violated his contract. Therefore, in an effort to salvage the relationship with Respondent, the Network prepared another contract for Respondent which included a reiteration of the requirement for random urinalysis and for the monthly contact, though this time, the contact was to be by telephone to Dr. Goetz only or, in his absence, his designee. This was to obviate the potential of Respondent getting into any dispute with other staff members. In addition, however, a requirement was added that Respondent be courteous and cooperative in all contacts with the PRN staff and representatives. Respondent refused to sign that contract even though it, too, was back dated to December 1, 1989, and his signature would not have added any time to the period of observation. Instead, on August 17, 1992, Respondent wrote to Dr. Goetz, again outlining his position that he was in full compliance with the PRN requirements and complaining of what he saw as the unfairness of the requirements placed upon him. After fully describing what he considered to be the inappropriateness of the requirements, he outlined his position on the various paragraphs of the proposed contract and indicated he would sign it only if he were guaranteed he would get full credit for time already spent in the program, and the total time of enrollment is reduced below five years. Upon receipt of that letter, Dr. Goetz telephonically contacted the Department's legal section and was advised to obtain a psychiatric evaluation of the respondent. Attempts were made to contact Respondent through September, October and November, 1992, both by telephone and by certified letter. Phone messages were not returned and the certified letter was not accepted. In this regard, Respondent claims he did not receive the letter, possibly because of a residential move. However, he did not indicate when this move took place, and as a result, it is impossible to determine if that is the reason for the nondelivery of the letter or if Respondent merely refused to accept it. Thereafter, in December, 1992, a letter was sent to the Department's legal staff by the Network, forwarding a copy of the latest contract and Respondent's response thereto. In the following February, the Department counsel was advised by Network that it was unable to establish cooperative monitoring of the Respondent and that Respondent was in violation of paragraphs 1 and 4 of the contract, relating to random urinalysis and monthly communication. It would appear that Respondent neither submitted to urinalysis nor had any monthly contact with the Network subsequent to his letter to Dr. Goetz in August, 1992. Respondent admits it is not in his best interests not to comply with the terms of the contracts he executed with the Network, and he would like to comply with as little friction as possible. However, he claims, shortly after the execution of the original contract, he received a call from Mr. Westmoreland indicating he was not complying. When he asked for an explanation, he was brusquely told, "read the contract", without further explanation. It was only when he spoke with another Network representative, Ms. Crummy, that he was told wherein he was delinquent. At that time, he also got the second contract. Notwithstanding Dr. Goetz had discussed the terms of the contract with Respondent at or shortly after the signing, Respondent contends he was not aware of the requirements for monthly letters, claiming he believed he had only to submit to the random urinalysis. In light of the Respondent's educational level, and the extreme simplicity of the contract language, it is impossible to accept that Respondent didn't know what was expected of him, and it is so found. Respondent has always contended he was not a drug user and denied he had any dependency on drugs. Therefore, he claims, he did not see any reason to send in a monthly letter nor did he know what the letter should include. For that reason, he asserts, he merely used the short form letter utilized in the early responses. When he was advised that was not sufficient, he wrote a longer letter which said much the same. He claims not to know what more he could have said. Respondent relates an ongoing disagreement with Mr. Westmoreland, and was, because thereof, transferred to the monitoring of Mr. Fontaine. In November, 1991, he was called for a urinalysis but had no money to pay for it. In light of the fact that Dr. Krone, the physician performing the urinalysis, reportedly had changed his procedure to require cash in advance, Respondent indicated he would take the test when he got paid later in the month. Mr. Fontaine agreed to this, but shortly thereafter, Mr. Westmoreland called Respondent and directed that he take the test. According to Respondent, Westmoreland said he didn't care where Respondent got the money to do so. Though the discussion between the two men became heated, the test was done. In December, 1991, Respondent received the letter stating he was no longer enrolled under the supervision of the PRN and was being reported for noncompliance. He claims that when he called the Network about this, they would not discuss it with him, merely stating he was out. When the Department started its investigation, Respondent spoke with the investigator, Mr. Hannah, and requested he be informed of what was determined. He claims he never received any notice from either the Department or PRN. He subsequently found out it had been determined he had done nothing wrong, but the Network sent him a new contract anyway. This last contract included the requirement for courtesy. Because Respondent felt he had done nothing wrong, he refused to sign it and wrote the letter setting out what he would agree to do and what he would not agree to. He has not received any response to that letter and as far as he is concerned, is still waiting. He believes he has been cancelled from the program, and without the new contract, he is not a part of the Network and has no requirement to cooperate in a program in which he is no longer enrolled. Respondent claims he does not refuse to cooperate but wants a contract which incorporates his terms as he outlined them in his August, 1992 letter to Dr. Goetz. In addition, since he feels he did nothing wrong, he wants an apology from someone. He asserts he has complied with the terms of the Board's Order in that he passed the test and has successfully cooperated with and complied with the requirements of the network as he understood them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that The Board of Medicine enter a Final Order in this case finding that Respondent, Leonard T. Campbell, violated the provision of Section 468.365.(1)(i), Florida Statutes, by failing to successfully participate in the PRN program mandated by the Board's Order of January 23, 1990, imposing a reprimand, and revoking his certification as a respiratory therapist technician, such revocation being suspended for two years conditioned upon his execution of an advocacy contract with the PRN, successful compliance with the terms and conditions of that contract, and such other conditions as the Board deems appropriate to the circumstances. RECOMMENDED this 11th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of May, 1994. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211-7466 Leonard Campbell, R.T.T. 8215 North 9th Street Tampa, Florida 33604 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in the State of Florida. At all times material to this case, the Respondent has been a licensed physician in the State of Florida, license #ME 0035994. In August, 1987, the Respondent met with a married couple for treatment of the wife's (patient) recurrent ovarian cysts and pain. The couple were referred to the Respondent for the consultation by another physician. The patient was hospitalized at the time of the consultation. As part of the initial examination of the couple, the Respondent conducted a routine infertility physical and history, including questions related to sexual history and practices. During the examination, the Respondent learned that the couple's sexual activity was infrequent and that the marriage was troubled. The Respondent determined that the cause of the medical problem was related to a fertility medication prescribed by another physician. At that time, and on subsequent occasions, the Respondent advised the couple to obtain marital and sexual counseling. The Respondent did not provide marital or sexual counseling to the couple. After the patient recovered from the ovarian cysts, she consulted with the Respondent in regards to her ongoing fertility and ovulatory problems. The Respondent began administering fertility medication to induce ovulation. The medical treatment was eventually successful and the patient became pregnant. The child was born in 1989. At some point during the fertility treatment, the patient complained to the Respondent of experiencing migraine headaches. The Respondent referred the patient to a neurologist who prescribed narcotic pain relievers. After the birth of the first child, the patient returned to the Respondent for further fertility treatment (apparently in late 1989 or early 1990) in order to conceive a second child. Again, the treatment was successful and the patient became pregnant. The Respondent referred the pregnant patient back to her obstetrician by letter dated April 23, 1990. Beginning in mid-1990, the patient and her husband began to engage in social activities with the Respondent. On occasion, the three had dinner, went swimming with their children, and went to view a fireworks show. The patient had been employed as a pharmaceutical representative, but was interested in changing careers. She expressed an interest to the Respondent in establishing a medical transcription business. The Respondent provided typing work to the patient. By April 23, 1990, the patient was typing letters for the Respondent. The letter from the Respondent to the obstetrician closes, "[p]lease forgive the typographical errors, as I am sure [patient] will be typing this letter." The patient gave birth to the second child on October 26, 1990. After the birth of the second child, the Respondent employed the patient as a medical transcriptionist. She also worked for her obstetrician as a transcriptionist. Based on the suggestion in 1990 by the patient, the Respondent began to employ the patient's husband as a certified public accountant. Throughout the remainder of 1990, the Respondent continued to socialize with the couple. The Respondent was aware that the couple's marriage was troubled. The continuing marital problems of the couple eventually resulted in separation when the patient's husband moved from their home into an apartment. The evidence fails to conclusively establish the date of the separation, but it apparently occurred prior to April, 1991. By April 1991, the patient and the Respondent continued to meet on a social basis. The Respondent was divorced. The patient and her husband remained separated. At times, the Respondent and the patient discussed their marital experiences. During this period, the Respondent and the patient expressed romantic feelings for each other. They began to "date," and the Respondent paid to take the patient to dinners and movies. In April or May of 1991, and continuing thereafter for a period of approximately three and a half years, the patient and the Respondent engaged in consensual sexual activity. It is critical for an obstetrician-gynecologist, as well as for a specialist in reproductive endocrinology, to understand and respect the sexual boundaries between physician and patient. The sexual boundary between a patient and a reproductive endocrinologist must be absolute. In order to receive appropriate medical treatment, the patient is requested to reveal intimate details of her sexual activities and the emotional nature of a marriage. The patient must be able to completely trust the physician. The information is and must remain confidential. From the time of the Respondent's initial examination and history of the patient, through the initiation of the sexual relationship, the Respondent was aware of the marital and sexual problems of the patient and her husband. The Respondent asserts that by the time the sexual relationship began, the physician-patient relationship had been terminated by the letter of April 23, 1990. Based on credited expert testimony, the evidence establishes that the physician-patient relationship continued to exist at the time the sexual activity began. The evidence establishes that the referral of a pregnant patient back to an obstetrician does not terminate the relationship with a fertility specialist, who may again be called upon to render assistance in treatment of continuing fertility problems. The evidence also establishes that prescribing of narcotics necessarily establishes a physician-patient relationship. Subsequent to the letter of April 23, 1990, the Respondent wrote prescriptions to refill narcotic pain medications which the patient had obtained from her neurologist. Although documentary evidence regarding the actual prescriptions is deemed to lack reliability, both the Respondent and the patient acknowledged that the prescriptions were written. The Respondent wrote the refills after the patient, with continuing migraine headaches, complained that she would have to see the prescribing physician and pay for an office visit to get them refilled. Although the Respondent claims to have reviewed an early report done by the neurologist to whom he had referred the patient, there is no evidence that the Respondent did a physical examination at the time he wrote the refill prescription. The evidence establishes that, because a physician can prescribe narcotics, there is potential for abuse by a physician who may attempt to trade drug prescriptions for sexual activity. It is unethical for a physician to induce a patient into sexual activity. Allowing an emotional relationship to begin and develop within the physician-patient relationship constitutes an inducement of the patient into sexual activity. The Respondent failed to maintain sexual boundaries with his patient. He allowed and encouraged an emotional and sexual relationship to develop, and as such, used the physician-patient relationship to engage and induce the patient into sexual activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order determining that Stephen Ward Weldon has violated Sections 458.329 and 458.331(1)(x), Florida Statutes, reprimanding the Respondent and placing the Respondent on probation for a period of two years. DONE and RECOMMENDED this 28th day of September, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6032 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, unnecessary. 19-20. Rejected, not established by clear and convincing evidence. 22. Rejected, cumulative. 29. Rejected, cumulative. Respondent The Respondent's proposed findings of fact frequently refer to an alleged termination of the physician-patient relationship. Such references are rejected as contrary to the greater weight of credible and persuasive evidence. Otherwise, the proposed findings are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected. The prehearing stipulation filed by the parties does not address certification. 9. Rejected as to patient's desire for her marriage to continue, and as to the assertion that her marital difficulty was "unrelated" to the eventual development of her relationship with the Respondent, irrelevant. Rejected, irrelevant. Rejected, recitation of testimony is not a finding of fact. 16-17. Rejected, recitation of testimony is not a finding of fact. 18-20. Rejected, irrelevant. DOAH CASE NO 94-6032 COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303-4131 Joseph S. Garwood, Esquire Agency for Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Grover Freeman, Esquire 201 East Kennedy, Suite 500 Tampa, Florida 33602-5829
The Issue The issue is whether Respondent is guilty of being unable to practice massage with reasonable skill and safety due to illness, in violation of section 480.046(1)(g), Florida Statutes, or failing to comply with a monitoring or treatment contract or being terminated from a treatment program for impaired practitioners, in violation of section 456.072(1)(hh), Florida Statutes, and, thus, section 480.046(1)(o), Florida Statutes. If either charge is proved, an additional issue is the penalty that should be imposed.
Findings Of Fact By application dated September 23, 2003, Respondent applied for licensure as a massage therapist. The application lists Respondent's address as 2342 Treasure Isle Drive, Palm Beach Gardens. At all material times, this has been Respondent's official address of record with the Board of Massage Therapy, and Respondent's parents have resided at this address. For much of the time since licensure, Respondent has resided at his parents' home. For the time since licensure that Respondent did not reside at this address, his parents timely forwarded to Respondent all licensure-related mail when they received such mail. Respondent's application mentions a mental illness, so the Board of Massage Therapy referred the file to its History Committee. After consideration of the materials in the file, the History Committee referred the file to PRN for an evaluation of Respondent and his fitness to practice. Respondent's psychiatrist, Jorge H. Caycedo, who practices in Miami, sent a letter, dated January 9, 2004, to the Board of Massage Therapy. The letter states that Respondent has been in out-patient therapy with Dr. Caycedo, "on and off," since October 1997. Dr. Caycedo opined that Respondent suffers from "a Bipolar Disorder." At the time of the letter, Respondent was on a combination of medications that he had found "most helpful." The letter concludes: [Respondent] is well aware of the nature of his mental problems and of the consequences of not taking his medications regularly, as prescribed. In my opinion, he is in condition to practice as a massage therapist provided that he follows the treatment recommended to him. On February 17, 2004, Dr. Aldo Morales, a psychiatrist, examined Respondent at the request of PRN. In his letter of the same date, Dr. Morales detailed Respondent's psychiatric history, which includes four hospitalizations for manic and depressive episodes--mostly the latter--and command auditory hallucinations. Dr. Morales noted that Respondent's family history includes a sibling with bipolar disorder and that Respondent's personal history included daily use of marijuana for six years, but his use of marijuana, as well as alcohol, had ended 11 years earlier. Dr. Morales' letter reports that a ten- panel drug screen, which included a test for marijuana, was negative. Dr. Morales found nothing adversely remarkable in the mental status exam and entered, as Axis I diagnostic impressions, "Bipolar Disorder, most recent episode depressed (3 1/2 years ago), with a prior history of psychosis" and "Cannabis dependence, in full sustained remission . . .." Dr. Morales assessed Respondent's global assessment of function as 70. Based on his examination, Dr. Morales concluded: It is my opinion that [Respondent] can practice his profession with reasonable skill and safety as long as he remains under psychiatric supervision, adheres to his medication regimen, and remains clean and sober. On March 13, 2004, PRN entered into an Advocacy Contract with Respondent. Immediately under "Advocacy Contract," at the top of the first page of the contract, is the following: "***Licensure-Long****." In the contract, Respondent agrees to submit to random urine or blood screens; abstain from all but prescribed medications, drugs, alcohol, and other mood-altering substances; obtain quarterly updates for PRN from Dr. Caycedo; attend a weekly PRN-monitored professional support group; and return messages from PRN within 24 hours. Other requirements included notification of PRN anytime that Respondent, a French citizen, left the United States and anytime that he returned to the United States, as well as a visit to Respondent's treating psychiatrist within one week of returning to the United States with a report from the psychiatrist to PRN. At the bottom of the contract, immediately above Respondent's signature, which is dated March 13, 2004, is the statement: [PRN] agrees to assume an advocacy role with Professional Licensing Board . . . for [Respondent] provided the following terms are agreed to and met. The duration of this contract will be licensure-long. . . . At the meeting of the Board of Massage Therapy on April 22, 2004, pursuant to the contract between PRN and Respondent, a PRN representative made a brief presentation highlighting the above-described facts. In this presentation, the PRN representative assured the Board that the monitoring would apply "license long." The Board agreed to issue a suspended license to Respondent, but to stay the suspension as long as Respondent remained compliant with the PRN contract. Immediately after the vote, a Board member addressed Respondent: You understand what we did? You have your license as long as you stay in compliance. There's a suspension on your license but that suspension is stayed[. A]s long as you stay in compliance with that contract[,] you['re] fine. The Board of Massage Therapy then issued an Order Granting Conditional License dated May 20, 2004. The Order states the application is: CONDITIONALLY APPROVED with the following conditions of licensure: [Respondent] shall remain in compliance with any recommended . . . PRN . . . contract. The license shall be issued suspended, with suspension stayed for so long as [Respondent] remains in compliance with the PRN contract. Should [Respondent] fail to maintain compliance with the PRN contract, the stay of suspension shall be lifted until [Respondent] appears before the Board and demonstrates renewed compliance. The conditions are imposed on [Respondent's] violation of section[s] 480.046(1)(g); 456 072(1)(y) Florida Statutes by being unable to practice Massage Therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of materials, or as a result of any mental or physical condition. The Order concludes with a Notice of Right to Hearing that clearly provides Respondent with a chance to contest disputed issues of fact before an Administrative Law Judge or undisputed issues of fact by other means. Respondent did not avail himself of either of these options. The Board of Massage Therapy issued Respondent license number MA 41103. The licenses issued by the Board of Massage Therapy expire on August 31 in odd-numbered years. Using the address noted above, the Board contacted Respondent each time that his license was approaching the end of its term, and Respondent renewed his license by August 31 in 2005, 2007, and 2009. At all times, Respondent's license number remained MA 41103. Following licensure, Dr. Caycedo provided PRN with periodic updates of Respondent's status, although the frequency of these updates was less than quarterly. These letters are dated June 10, 2004; October 8, 2004; February 8, 2005; February 21, 2005; June 1, 2005; December 1, 2005; and February 16, 2006. The February 8 letter reports that Respondent said on this visit that he had been hearing voices, although they had been friendly and not issuing commands, and he had been "more depressed." The other letters reported that Respondent was in good mental condition and stable, although the last letter reports that Respondent had complained of difficulty concentrating and feeling "racy." This letter states that Respondent's next office appointment would be in two months. Respondent testified that he visited Dr. Caycedo and attended group meetings for the first two years after receiving his license. Respondent's main defense is that the condition of suspension attaching to his license expired when the first license term expired because his renewed license was "new" and not conditioned on his ongoing compliance with the PRN contract. However, Respondent did not take advantage of the opportunity to clarify his claimed misunderstanding when he could have done so easily. By letter dated January 23, 2007, Dr. Raymond M. Pomm, then Medical Director of PRN, warned Respondent that PRN was preparing to refer Respondent's case to Petitioner due to Respondent's failure to comply with his contract and gave Respondent until February 1 to contact PRN staff for "direction." If Respondent had truly misunderstood whether the condition had continued to attach to his license, he would have taken this opportunity to resolve the issue. Respondent received the January 23 letter. It was sent to the address listed above, and Respondent's father signed for it on January 25, 2007. Respondent's admission at the hearing that it was "possible" that he received this letter acknowledges the obvious--he received it, and he received it when it was delivered at his parents' home. At the time, Respondent was living at this address. Also, later in 2007, when Respondent's license came up for renewal, the notice went to the same address, and Respondent did what was required to renew his license. Respondent ignored the February 1 deadline. On February 26, 2007, Dr. Pomm wrote Respondent to advise him that PRN had referred his case to Petitioner for noncompliance with his PRN contract. Again, Respondent received the letter, but took no action. On the same date, Dr. Pomm wrote Petitioner and stated that Respondent was not in compliance with his PRN contract, and Dr. Pomm "cannot say that he is safe to practice with reasonable skill and safety " Respondent continued to practice massage therapy in Florida until September 2008. At this time, Respondent returned to Paris, France, where he lived and worked until about December 1, 2010, when he returned to Florida. Respondent testified that he filed the paperwork to renew his license by August 31, 2009, while he was residing in Paris. Although the record omits any copy of this renewal, unlike the 2005 and 2007 renewals, Mr. Anthony Jusevitch testified that the Board renewed Respondent's license on August 31, 2009. Respondent testified that he visited Dr. Caycedo upon Respondent's return to Florida, but the record contains no indication of when or the findings of Dr. Caycedo, except Respondent's two-edged assurance that Dr. Caycedo thought that it was a "miracle" that Respondent was well. At the hearing, Dr. Rivenbark testified on cross that she has no reason today to opine that Respondent could not practice massage therapy with skill and safety, although, on redirect, she clarified her testimony by adding that, based on Respondent's diagnosis, there is "great potential" that he may be unsafe to practice. Dr. Rivenbark's opinion is about the same as Dr. Pomm's opinion--each expert lacks a basis to say that Respondent may practice with reasonable skill and safety. Of course, such evidence is short of establishing that Respondent is unable to practice with reasonable skill and safety. The only evidence to support a present finding to this effect would be an inference from Respondent's initial diagnoses, as well as his auditory hallucinations and recurring depression, although these occurred five years ago. The most current information appears to be Dr. Caycedo's findings upon Respondent's return to Florida a couple of months ago, but, given its hearsay nature, this testimony is not especially reliable, nor is it at all descriptive of what, if anything, Dr. Caycedo meant. The evidence in this record is therefore short of what is necessary to establish that Respondent may not practice with reasonable skill or safety, but this finding in no way implies that the condition originally attached to his license--ongoing compliance with the PRN contract--is no longer necessary.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order suspending Respondent's license until he achieves compliance with his PRN contract. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of March, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Fabian Chanoz 2342 Treasure Isle Drive Palm Beach Gardens, Florida 33410 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3256 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue When the hearing commenced, the parties through counsel agreed that sufficient facts would be presented to sustain a finding of violations of Counts One, Two, and Three a. and b., within the Administrative Complaint drawn by the State of Florida, Department of Health, Case No. 1999-53281. It was left for the fact finder to portray those facts consistent with the agreement. The parties presented their cases and facts have been found on the record which promote findings of violations of the aforementioned counts. In addition, as envisioned by the parties and accepted by the undersigned, determinations concerning recommended sanctions for the violations have been made on the record presented at hearing.1
Findings Of Fact Respondent's History At all times relevant, Respondent has been licensed as a physician in the State of Florida in accordance with license No. ME:0061141. His practice has been in the field of psychiatry. Respondent is Board-certified in psychiatry. Respondent has a Bachelor's of Science degree from the University of Michigan. He holds a Masters' degree in Clinical Social Work from Tulane University and a Medical Degree from Louisiana State University Medical School. Respondent did a four-year residency at Ochner Foundation Hospital in Psychiatry. Respondent has been married to Brenda Schenthal for 25 years. The Schenthal's have two sons, ages 10 and 12. The family resides in Destin, Florida. Respondent began private practice in the Fort Walton Beach, Florida, area in 1993 with Dr. Victor DeMoya. Respondent was affiliated with that practice when circumstances arose for which he stands accused. Respondent practiced in the group known as Emerald Coast Psychiatric Care, P.A., in Fort Walton Beach, Florida. Respondent does not have a prior disciplinary history with the Board of Medicine. M.B.G. M.B.G. was born July 23, 1981. Respondent first saw M.B.G. on March 21, 1996, when she was 14 years old. M.B.G. presented with issues of uncontrollable behavior, running away from home, anger, rage, drug use, suspected alcohol abuse, and sexual promiscuity. M.B.G. did not have a history of acting out until she was 13 or 14 years old. Respondent had been treating M.B.G. for approximately two months, when in May 1996, M.B.G. was involved in a physical altercation with another student in her school. The evaluation Respondent performed at that time revealed that M.B.G. was extremely angry, presenting sufficient risk that Respondent determined to involuntarily commit M.B.G. to Rivendell Hospital in Fort Walton Beach, Florida. At the time M.B.G. remained hospitalized for a couple of weeks. Following her hospitalization M.B.G. was seen by Dr. Deborah Simkan, an adolescent psychiatrist. Dr. Simkan was associated with Respondent's clinic. M.B.G. remained in treatment with Dr. Simkan until August of 1996. At the time M.B.G. was also being seen by Betty Mason, a mental health counselor affiliated with Respondent's practice. There was some concern about the progress M.B.G. was making under Dr. Simkan's care and the family determined to move M.B.G. from the Fort Walton Beach, Florida, area to live with an aunt in Charleston, South Carolina. M.B.G. had been sent to live with her aunt because M.B.G. was defiant, would not follow the rules in her household, and was difficult to control. After living with her aunt in Charleston, South Carolina, for several months it became apparent that the aunt was unable to control M.B.G. There was some suspicion that M.B.G. was using drugs while residing with her aunt. When M.B.G. returned from Charleston, South Carolina, she ran away from home as she had before. When she was found she was sent to live in a treatment facility in Trenton, Alabama. That facility was Three Springs. The reasons for her placement related to the inability to control her conduct, suspected alcohol abuse, and sexual promiscuity. M.B.G. remained at Three Springs from January 1997 until her return home in April 1998. Her stay in that facility was in accordance with a very structured environment. While at Three Springs M.B.G. revealed for the first time that she had been the victim of sexual abuse by a male YMCA counselor when she was nine years old. As a means to express her feelings, while at Three Springs, M.B.G. was encouraged to write in journals, in that she found writing about her feelings an easier means of expression then verbalizing her feelings. M.B.G. could share or refuse to share the things that she had written in the journals. Upon her release from Three Springs M.B.G. asked that Respondent resume her care. It was anticipated that Respondent would treat M.B.G. for the sexual abuse that had occurred earlier in her life and as a means to transition from the very structured environment at Three Springs into greater freedom she would have living at home. In April 1998, when Respondent again undertook M.B.G.'s care, his response to his duties was initially appropriate. However, upon reflection Respondent questions the decision to undertake the care following his former decision to place M.B.G. in Rivendell Hospital under the Baker Act. In April, M.B.G. was being seen by Respondent in his practice twice a week for one hour each visit. A couple of months later the schedule changed from two one-hour sessions per week to one two-hour session per week. Around August or September 1998, Respondent began to see M.B.G. three or four times a week in his office. By January of 1999, Respondent was seeing M.B.G. almost on a daily basis, not always in his office. Some of the increases in contacts between M.B.G. and the Respondent were associated with group therapy sessions involving M.B.G. and other sexual abuse patients under Respondent's care. One of the persons in the group was considerably older than M.B.G. It was not shown that the inclusion of the older patient in the therapy group was designed to advance some inappropriate purpose in the relationship between Respondent and M.B.G. Nonetheless, Respondent now questions the appropriateness of placing M.B.G. in the group with such divergence in ages among the participants. Upon her return from Three Springs M.B.G. became pregnant as was manifest in May 1998. She informed Respondent of her pregnancy. Reluctant to tell her parents about her condition, M.B.G. expressed the belief that an abortion was a better choice in responding to her pregnancy. Respondent left it to M.B.G. to inform her parents or not concerning the pregnancy. Respondent arranged for M.B.G. to talk to a patient who had gone through a somewhat similar experience. Ultimately M.B.G. told her mother of the pregnancy and the desire to terminate her pregnancy. Her mother was supportive of that choice and arranged for the abortion procedure. Respondent offered to go with M.B.G. and her mother M.G. when the abortion was performed. Respondent now concedes the error in the choice to offer to accompany and the accompaniment of M.B.G. and her mother to the place where the abortion was performed. This was not an appropriate response for a care-giver. Upon her return from Three Springs M.B.G. had a better relationship with her family than before. But the cordiality did not last. Over time their relationship became strained. M.B.G. was especially irritated with her mother. As before, M.B.G. maintained journals upon her return from Three Springs, portions of which she shared with Respondent. M.B.G. considered the journals to be private. Her mother was aware of the issue of privacy. Without permission M.G. read her daughter's journals. Being aware that the mother had read the journals, Respondent brought M.B.G. a safe to help maintain the journals in privacy. This purchase constituted involvement with the patient M.B.G. beyond the provision of appropriate care and into the area of problem solving in which Respondent should not have been involved. Respondent has come to understand that the purchase of the "lock-box" was not an appropriate decision. Another indication that Respondent was deviating from the normal physician-patient expectations in treating M.B.G. occurred in September 1998, in a meeting between M.B.G. and her parents. Rather than maintain his professional objectivity, Respondent sided with the patient M.B.G. in a setting in which the parents were attempting to impose rules and restrictions on her conduct. In retrospect Respondent feels that he should have handled that appointment differently, realizing his conduct indicated that something was going on within him that was not desirable, as evidenced by his starting to side with the patient. In November 1998, in response to one of the therapy sessions Respondent was engaged in with M.B.G., Respondent provided the patient with a can of Spaghettios and a poster board that he sent home with her mother. With these items he wrote a note that indicated that the Spaghettios were a reward for her efforts and he signed the note "your protector" and the name "Steve" in informal reference. As Respondent acknowledges, this was "an indication there was certainly more going on with myself," referring to feelings he was developing for the patient that were not proper conduct for a physician. M.B.G. and her family took a Christmas holiday in 1998. M.B.G. did not enjoy the trip. In explaining the lack of enjoyment, M.B.G. indicated that she did not enjoy spending time with her family on the vacation. Upon the return home M.B.G. went to stay with a friend from school. The friend with whom M.B.G. was staying upon the return from the vacation was being visited by some students from Florida State University. It was decided that M.B.G.'s friend, M.B.G., and those students would go to M.B.G.'s house to play pool. The next morning, M.B.G.'s mother found evidence that beer or other forms of alcohol had been consumed in the basement where the pool table was located. D.G., M.B.G.'s father also saw this evidence. M.G. confronted M.B.G. with the evidence. M.B.G.'s response was to leave her home and return to her friend's home. Later M.B.G. called her home and left a message that she was going to spend the night with her friend. Beyond that point Respondent became aware that M.B.G. and her mother had a disagreement about what had happened in the basement at their home. M.B.G. denied being involved in drinking. Respondent became involved in what he considered to be a stand- off between M.B.G. and her mother concerning terms acceptable for M.B.G.'s return home from her friend's house. As Respondent described it, he was allowing himself to get stuck in between M.B.G. and her mother on this subject. During the time that M.B.G. lived away from her home with the friend, Respondent spoke to M.G. about a contact which M.G. had with Three Springs, in which it was stated that M.B.G. might be returned to that facility or that M.B.G. might possibly be emancipated. Respondent spoke to Dr. Ellen Gandle, a forensic child/adolescent/adult psychiatrist, expressing his feelings of responsibility to help M.B.G. other than in the role of psychiatrist. Dr. Gandle strongly suggested Respondent not abandon his role as psychotherapist in favor of that of guardian for M.B.G. The possible guardianship was another subject that had been discussed with M.G. Respondent also tried to contact Dr. Charles Billings who had been the Respondent's residency director at Ochner to discuss this situation concerning M.B.G. In conversation, Dr. Victor F. DeMoya, Respondent's partner in the practice, advised Respondent that Dr. DeMoya considered it to be a conflict in roles for Respondent to be a therapist to M.B.G. and her guardian and that Respondent should seek the "feedback" of other colleagues about that prospect. Given the schism that existed between M.B.G. and her mother, the mother expressed a reluctance to provide continuing financial support to her daughter, the mother wanted the daughter to return the car the daughter was allowed to drive, and the mother wanted the house keys and credit cards returned. These views were made known to Respondent. Respondent went with a member of M.B.G.'s therapy group to M.B.G.'s home to remove her belongings. This retrieval of the patient's belongings was a boundary violation of conduct expected of a physician. Beyond that point Respondent continued to pursue a course of conduct involving boundary violations in his relationship with M.B.G. While M.B.G. was living with her friend from December 1998 until February 12, 1999, Respondent saw her frequently outside the treatment setting. In these instances Respondent discussed with M.B.G. her living circumstance. Respondent was involved with paying rent to the family of the friend with whom M.B.G. was living. Respondent was involved with shortening M.B.G.'s school day as a means to assist her in getting a job. Respondent helped M.B.G. to fill-out applications for college. Although Respondent had the expectation that M.B.G. would eventually repay the money expended, Respondent and his wife purchased an automobile and gave it to M.B.G. Respondent opened a joint checking account in which M.B.G. had access to monies that had been placed there by Respondent. Respondent provided M.B.G. a pager which was used by Respondent in contacting M.B.G. at her friend's residence after curfew hours that had been imposed by the friend's parents. Sometime around the latter half of January 1999, Respondent became convinced that he was falling in love with M.B.G. He gave expression to these feelings both verbally and in cards that he sent to M.B.G. In addition, Respondent had sexual fantasies about M.B.G. Respondent went so far as to discuss with M.B.G. the possibility of marrying her and the consequences of that choice. Eventually, Respondent made his wife aware of his feelings toward M.B.G. On February 11, 1999, while seated in the car Respondent had purchased for M.B.G., they kissed briefly. On February 12, 1999, M.B.G. and the friend in whose house M.B.G. was living, had an argument and M.B.G. left the home. After leaving she called Respondent early on February 13, 1999. She explained to Respondent that she had left the friend's home and was planning to drive to Tuscaloosa, Alabama. In response Respondent offered to meet M.B.G. They met at a parking lot at a Walgreens store. While seated in the car they talked for a while and kissed. Respondent invited M.B.G. to stay at his residence. She declined. Respondent then offered to get her a hotel room. On February 13, 1999, Respondent paid for a room in a local motel for M.B.G. to use. Respondent carried her belongings into the room. They sat on the bed in the room and talked, kissed, and hugged. In the course of the hugging Respondent placed his hand inside the band of M.B.G.'s sweat pants that she was wearing. Respondent touched M.B.G.'s breast on the outside of her clothing. Respondent then left the lodging and returned home. When at home he explained to his wife what had transpired with M.B.G. Following the encounter on February 13, 1999, in the motel, Respondent discussed the situation involving M.B.G. with his partner in the clinic. His partner told Respondent that Respondent needed help. Respondent contacted Dr. Henry Dohn, an adult psychiatrist practicing in Pensacola, Florida. This visit took place on February 14, 1999. They discussed the situation with M.B.G. An arrangement was made for a return visit which occurred on February 19, 1999. Respondent reports that Dr. Dohn told Respondent that the Respondent was not thinking clearly and needed to stop practicing and to attend to whatever issues needed attention in association with the boundary violation pertaining to M.B.G. Respondent was told by Dr. Dohn that if he did not report himself, Dr. Dohn would make a report concerning the conduct. In turn Respondent called a Dr. Dwyer, the on-call doctor at the Physician's Resource Network. Consistent with the discussion held between Respondent and Dr. Dohn, Respondent determined to admit himself for treatment at the Menninger Clinic in Topeka, Kansas. Respondent was admitted to the clinic on February 22, 1999. He had told his partner Dr. DeMoya that he was going to the clinic. Respondent admitted himself to the Menninger Clinic on a voluntary basis. While under treatment at Menninger Clinic Respondent was cared for by Dr. Richard Irons. Respondent also consulted with Dr. Glenn Gabbard, who specializes in boundary violations. Respondent was treated at the Menninger Clinic from February 22, 1999 through February 24, 1999, on an in-patient basis. He continued his treatment on an out-patient basis from February 24, 1999 until March 19, 1999. Respondent was released from the Menninger Clinic on March 19, 1999, and returned to Florida. Without justification and contrary to appropriate conduct for a physician, especially when recognizing his past indiscretions with M.B.G., Respondent made an arrangement to meet M.B.G. in person. This was contrary to any of the advise he had been given either medical or legal. While it had been suggested that Respondent offer assistance in placing M.B.G. in therapy with another care-giver, it was not contemplated that the arrangements would be made in person. Moreover, Respondent had a more expansive agenda in mind when meeting M.B.G., beyond acknowledging his responsibility for what had transpired between them, the offer to assist in finding a therapist and the possibility of paying for the therapy. Broadly stated, Respondent believed at that point-in-time that he could "fix things between them." Respondent was unaware that M.B.G. had contacted the authorities after their encounter in the motel room and complained about his conduct. She agreed to assist the authorities in investigating Respondent, to include taping telephone conversations between M.B.G. and Respondent while he was in Topeka, Kansas, undergoing treatment and upon his return. As well, M.B.G. was wearing a transmitter when she met Respondent in a park in Fort Walton Beach, Florida, on March 22, 1999, that would allow the authorities to record the meeting. The meeting was also video-taped. When the meeting concluded Respondent was arrested by Okaloosa County, Florida, Sheriff's deputies upon charges of battery, attempted sexual misconduct by a psychotherapist and interference with child custody. As a consequence, Respondent was charged in State of Florida vs. Stephen Schenthal, in the Circuit Court of Okaloosa County, Florida, Case No. 99-497-CFA. The case was disposed of by entry of a plea of nolo contendere to Count One: attempted interference in custody, Count Two: attempted sexual misconduct by a psychotherapist. In response an order was entered by the Court withholding the adjudication of guilt and placing defendant on probation on September 2, 1999. Respondent was placed on probation for a period of two years under terms set forth in the court order. These criminal offenses relate to the practice of medicine or the ability to practice medicine. In his testimony Respondent acknowledged that he committed boundary violations with M.B.G. that are depicted in the fact finding. Whether Respondent recognized the damage he was causing while he was engaged in the misconduct, he does not deny that he violated the fiduciary relationship with his patient by betraying M.B.G.'s trust and participating in the re- traumaterzation of her past. No independent evidence from a person treating the patient was presented concerning M.B.G.'s mental health following Respondent's transgressions. But Respondent recognizes the potential for significant damage to his patient by making it hard for M.B.G. to trust other physicians, therapists, authority figures, or to trust relationships in general and the possible re-enforcement of the trauma that had occurred in her childhood. Dr. Peter A. Szmurlo, a psychiatrist who practices in Florida, was called upon to review the circumstances concerning Respondent's relationship with M.B.G. Dr. Szmurlo has not had the opportunity to examine M.B.G. However, in a report dated November 1, 2000, concerning Respondent's actions, Dr. Szmurlo stated, "I believe that the patient's relationship with Dr. Schenthal was nothing but destructive and may preclude her ability to ever be able to develop a trusting relationship with another male and/or with another psychotherapist." In his deposition Dr. Szmurlo expressed the opinion that the issue of potential harm to M.B.G. was clear and that the potential harm was in association with "further undermining of the patient's sense of safety and, therefore enhancing or recreating the original trauma (assuming it really occurred), and that's the sexual trauma which occurred in early years." Dr. Joel Ziegler Klass, practices psychiatry in Florida. Dr. Klass reviewed information concerning Respondent's relationship with M.B.G. Dr. Klass did not personally assess M.B.G., however, within his knowledge of the facts concerning the relationship between Respondent and M.B.G. and the patient's prior history; Dr. Klass did not think a lot of damage had been done by Respondent to M.B.G. He did express the opinion that M.B.G. lost out on valuable time to get help for her mental health based upon Respondent's indiscretion. As of November 27, 2000, when M.B.G. gave her deposition, she was attending the University of Alabama in Tuscaloosa, Alabama. She explained that she had been seen by a mental health care provider, Dr. Carol Ware, a psychologist in Tuscaloosa, Alabama. The purpose for seeing Dr. Ware was basically pertaining to "things that had happened with Dr. Schenthal." M.B.G. last saw Dr. Ware in July or August 2000. M.B.G. expressed an interest in seeing a psychiatrist and indicated that she had called three different doctors. She wishes to see a female psychiatrist and she understands that only one or two female psychiatrists were practicing in Tuscaloosa when she inquired. She provided information to facilitate being seen by one of those psychiatrists but has not heard back from either practitioner concerning their willingness to treat M.B.G. In her deposition M.B.G. expressed the feeling of depression "just ups and downs and it comes as fast as it goes and it’s getting a lot worse and I need somebody to help me with it." Dr. Szmurlo expressed the opinion, within a reasonable degree of medical certainty, that Respondent used information gathered from the physician/patient relationship during the therapeutic sessions to establish trust and exercise influence over M.B.G. thereby engaging in a course of conduct for purposes of engaging a patient in a sexual relationship. That opinion is accepted. Dr. Szmurlo also expressed the opinion, within a reasonable degree of medical certainty, that Respondent in his treatment of M.B.G. practiced medicine with a level of care, skill, and treatment, which would not be recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. That opinion is accepted. Respondent: Diagnosis, Care, and Practice Opportunities Respondent returned to the Menninger Clinic on March 29, 1999, and was seen on an in-patient basis until May 14, 1999. Dr. Richard Irons was Respondent's principal treating physician at the Menninger Clinic. Upon his release from the Menninger Clinic, Respondent has been routinely treated by Dr. Roberta Schaffner, who practices psychiatry in Pensacola, Florida. Her treatment began July 9, 1999, and was continuing upon the hearing dates. Her treatment involves psychotherapy and the use of medications. As Dr. Schaffner explained in correspondence to counsel for Respondent, Dr. Schaffner's treatment does not involve the role of making specific recommendations about the timing and details of Respondent's possible return to practice. The treatment provided by Dr. Schaffner was in agreement with the treatment plan from the Menninger Clinic and was discussed with Dr. Irons and Dr. Gabbard who had cared for Respondent at the Menninger Clinic. Dr. Schaffner does not oppose the recommendations of Dr. Barbara Stein, a psychiatrist who has evaluated Respondent concerning his fitness to return to practice and under what circumstances. With this knowledge, Dr. Schaffner has indicated that were she persuaded that the suggestions by Dr. Stein for restrictions on Respondent's possible return to practice were ideas that were dangerous or inappropriate, Dr. Schaffner would be active in expressing her opposition, recognizing Respondent's difficulties. This is taken to mean recognizing Respondent's underlying mental health which needs attention. As Dr. Klass explained in his testimony, Respondent's present physician Dr. Schaffner would not offer her specific observations concerning Respondent in the interest of maintaining the physician/patient relationship. Using the diagnostic criteria in DSM-IV, Mental Disorders, Dr. Irons identified Respondent's condition as follows: Axis I: 296.22 Major depressive episode, single, in full remission V. 62.2 Occupational problem associated with professional sexual misconduct Axis II: 301.9 Personality disorder NOS, a mixed personality disorder with narcissistic, histrionic, compulsive and dependent features. Dr. Irons expressed this diagnosis in correspondence dated March 24, 2000, directed to Dr. Raymond M. Pomm, Medical Director for the Physician's Resource Network. In addition to the prior treatment described, Dr. Irons has seen Respondent for internal review of Respondent's progress and rehabilitation. On November 29 and 30, and December 1, 1999, Dr. Irons noted that: The patient continued to show progress and understanding in appreciating boundary- related issues, as well as problems of potential vulnerability associated with professional re-entry. The patient shows incremental improvement in understanding dynamics of boundary violations and appears to have gained some insight into the nature of his own transgressions. I concur with opinions presented by Dr. Schaffner, as well as Dr. Gabbard that ongoing and continuing work should be strongly encouraged. Collectively, Dr. Gabbard, Dr. Schaffner, and myself believe that this individual has the potential to practice psychiatry but only with the use of a carefully structured and monitored professional re-entry program. view: We would support professional re-entry into a psychiatric practice that involves males and females if the site provided for direct supervision with regular reports to appropriate regulatory authorities in Florida. In the correspondence Dr. Irons went on to express his It is my professional opinion with a reasonable degree of medical certainty that Steven Schenthal has made sufficient progress to be able to return to the practice of psychiatry with reasonable skill and safety on the following conditions: The patient will return to practice serving an all-male population. The patient will not serve females professionally under any circumstances. Dr. Schenthal will not engage in marital therapy or couples therapy or work with groups involving males and females. Dr. Schenthal will engage in a program that will involve monitoring of his practice through a sexual boundary violation contract with the Physicians Recovery Network. The patient will enact practice modifications which include appointments only during office hours with support staff in attendance, limitation of office hours to 8 a.m. to 5 p.m., office policies and office practice to be monitored by a psychiatrist agreeable to Dr. Schenthal and the Physician Resource Network, ongoing individual psychotherapy with Roberta Schafner, [sic] M.D., twice weekly at this time and a frequency agreeable to Dr. Schafner [sic] and other concerns [sic] parties. The patient will practice in an office which includes other therapists if not other physicians, and will arrange for clinical supervision with the supervisor having regular contact with Roberta Schafner [sic]. Dr. Barbara N. Stein, is Board-certified in psychiatry and practices in Florida. She was requested by Respondent to provide a second opinion on what parameters would allow Respondent to practice medicine with reasonable skill and with safety to patients. Reportedly, this request was made by Respondent who was dissatisfied with Dr. Irons' recommendations concerning the circumstances under which Respondent might return to practice. Based upon a review of the history of Respondent and the treatment provided to M.B.G. and an interview conducted on August 22, 2000, Dr. Stein concluded that Respondent suffers from Major Depressive Disorder, Single Episode, without psychotic features, Mild DSM-IV 296.21; Dysthymic Disorder, DSM- IV 300.4; and that there is evidence that Respondent suffers from personality disorder, not otherwise specified with narcissistic, histrionic, and anti-social personality traits, DSM-IV 301.9. In her report Dr. Stein went on to express her opinion on how Respondent can practice medicine with reasonable skill and safety to patients and stated that within her opinion with reasonable medical certainty Respondent can practice safely as long as certain restrictions were in place to include: Dr. Schenthal continues at least weekly (and preferably twice a week) therapy as recommended with Dr. Schaffner. Dr. Schenthal continues in weekly PRN Caduceus group. Dr. Schenthal continues to have regular, indirect physician monitoring of his cases directed by the Board. Dr. Schenthal works only in an institutional or group practice setting and does not treat (with psychotherapy) any female patients under 30 for at least two years or until which time he is deemed safe to do so. Dr. Schenthal may do medication management with females under 30 if and only if he has a licensed female health care worker in the room at all times and he does not have any call responsibilities that would cause him to treat these patients after hours without a chaperone. He should not ever treat female adolescents again. Dr. Schenthal takes a series of professional boundary/risk management courses on an annual basis. Patient survey and physician survey forms are employed quarterly and results are satisfactory. Dr. Schenthal has appointments only during regular office hours. Dr. Schenthal continues taking his antidepressant medication until his depressive symptoms have remitted for a minimum of six months and/or Dr. Schaffner recommends discontinuation. Dr. Schenthal and his wife participate in marital therapy if recommended by Dr. Schaffner. Dr. Schenthal is fully compliant with the above and with his long-term PRN contract. With the above recommendations for continued rehabilitation, supervision and monitoring in place, it is my medical opinion that Dr. Schenthal can begin his re-entry into professional practice with the reasonable skills and safety to patients. Dr. Raymond M. Pomm is a psychiatrist. He is the Medical Director of the Physician's Resource Network. Dr. Pomm was aware of Dr. Stein's findings concerning Respondent when Dr. Pomm prepared his own report on October 27, 2000. Based upon Dr. Stein's evaluation, Dr. Pomm's knowledge of the case and with the recognition that restrictions on Respondent's return to practice would be monitored by the Physician's Resource Network, in part and by the Agency for Health Care Administration otherwise, Dr. Pomm described the nature of restrictions he would recommend, should Respondent be allowed to return to practice. They were as follows: Dr. Schenthal should continue at least weekly psychotherapy. This will be a requirement of his PRN contract. Dr. Schenthal should continue his weekly PRN Caduceus group. This also will be a part of his PRN contract. Dr. Schenthal should have indirect physician supervision. This supervision would entail Dr. Schenthal meeting with a physician who is Board-Certified in his specific specialty of Psychiatry on a monthly basis. Each visit will require the supervisor to review with Dr. Schenthal a randomly selected ten percent of Dr. Schenthal's charts pertaining to his treatment of female patients. Therefore, every quarter, a minimum of thirty percent of his charts should have been reviewed. The review would be looking at the appropriateness of evaluative techniques used, therapeutic and psychotropic medication management issues, as well as, countertransferential issues. Also, this review will determine the appropriateness of the ongoing treatment plan and Dr. Schenthal's follow-up with said treatment plan. Dr. Schenthal should only work in an institutional or group practice setting. Dr. Schenthal should not treat any female patient under thirty years of age with psychotherapy for at least two years, and until such time he is deemed safe to do so. Dr. Schenthal may do medication management with females under thirty years of age, if an only, if, he has a licensed female health care worker in the room at all times. Dr. Schenthal should never have any call responsibilities that would cause him to treat the restricted population after hours without a chaperone. Dr. Schenthal should never treat female adolescent patients again (any female patients under twenty-one years of age). Dr. Schenthal should receive annual CME credits in boundary violation and risk management. Patient survey forms, which will be supplied by PRN, should be distributed to his patients by his office manager for one entire week every quarter. These completed forms would then be sent to his indirect physician supervisor for review. Dr. Schenthal should only have appointments with patients during regular office hours. Dr. Schenthal should continue to see his psychiatrist on a regular basis as required by his PRN monitoring contract. Dr. Schenthal will be required to inform his office staff of the difficulties he is experiencing, the terms of his agreement with the Agency for Health Care Administration, as well as, the terms of his agreement with his PRN contract and give his staff the PRN phone number. The tenure of the PRN contract will be license-long. Dr. Klass was called upon by Respondent to offer an opinion concerning Respondent's conduct, in relation to the care Respondent provided M.B.G. After familiarizing himself with the circumstances, to include the reports of Dr. Schaffner concerning treatment provided Respondent and the forensic psychiatric examination performed by Dr. Stein, Dr. Klass arrived at his opinion concerning Respondent's status. Dr. Klass also spoke to Dr. Schaffner by telephone concerning her opinion and attitudes about Respondent. Implicit in Respondent's request was the intent that Dr. Klass speak to the issue of Respondent's future opportunities to practice and under what conditions. In arriving at his conclusions Dr. Klass performed an assessment of Respondent. Dr. Klass expressed the opinion that if Respondent were allowed to return to practice, Respondent could do so acceptably if the following restrictions were in place: 1) No treatment of a female patient younger than 21 years of age until Respondent completes his therapy, as attested to by two sources, one of whom is his treating psychiatrist and the other psychiatrist who is selected; 2) Supervision of all female cases not just young females; Respondent would have to take the charts of his female patients to a qualified Board-certified expert and go over those cases so that it can be determined whether Respondent is significantly affected by his problem in that it is not resolved; 3) Marriage counseling; 4) Participation in group therapy; 5) Medication as necessary; 6) Urine checks that Respondent would have to consent to on an unscheduled basis to determine if he is taking prescribed medication; 7) Further psychiatric/psychological testing if deemed necessary by treating therapists or the Board of Medicine; 8) Literature review on the subject of countertransferance which was in evidence in Respondent's conduct directed to M.B.G.; 9) No patients seen before 8:00 a.m. or after 6:00 p.m.; 10) Contact with Physician's Resource Network professionals who have similar problems to those experienced by Respondent; 11) Allowing assessment by a third- party through a psychological or psychiatric evaluation; Allowing communication with female consenting patients concerning limited questions about their therapy; and Maintaining a "dream journal." With these restrictions in mind, Dr. Klass believes, within a reasonable degree of medical probability, that Respondent could practice psychiatry safely. The restrictions which the physicians have recommended recognize that Respondent has yet to achieve a level of improvement in his condition that would not require close monitoring of his practice and their belief that he not be allowed to treat young female patients. These opinions are held while recognizing Respondent's improvement and willingness to continue with treatment. The opinions concerning restrictions on practice are accepted as well informed and meaningful. Dr. Madison Haire is a practicing internist and nephrologist in Fort Walton Beach, Florida. In the past, Dr. Haire referred patients to Respondent and was persuaded that Respondent provided those patients with excellent supervision, monitoring, and care, prior to the incident with forms the basis for this case. Dr. Haire was unaware of any complaints against Respondent. Dr. Patricia Harrison is a Board Certified psychiatrist who is practicing in the Fort Walton Beach area and has had the opportunity to observe Respondent in the performance of his duties. Dr. Harrison has observed that Respondent exercised professionalism and good judgment in rendering good care and treatment to his patients, aside from the present case. Other physicians have offered favorable opinions concerning Respondent's practice as evidenced in Respondent's Exhibit No. 8.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes the following penalties: Count One: Imposition of a $5,000.00 administrative fine; Count Two: A suspension of one year from the date upon which the final order is entered; Count Three: Placement of Respondent on two years probation following the service of his suspension, subject to such conditions as the Board may specify and restriction of Respondent's practice consistent with those recommendations that have been made by the treatment specialists, as deemed appropriate. DONE AND ENTERED this 15th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2001.
The Issue Did the Respondent commit the violations alleged in the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Respondent is and, at all times material hereto, has been licensed to practice medicine in the State of Florida. On June 23, 1999, patient J.V., a 19-year-old female, presented at Mid Town Clinic (Mid Town) in Zephyrhills, Florida, along with Gabriel Amparo, the man with whom she lived and the father of her children. J.V., a Medicaid eligible patient, appeared at Mid Town to obtain a referral from a primary care physician to Dr. Ferilta, her gynecologist, in order to receive an intrauterine device (IUD). J.V. had appeared previously at Mid Town with Gabriel Amparo, who also received medical care and treatment from the physicians at Mid Town. On June 17 and 18, 1999, Gabriel Amparo had medical appointments at Mid Town and was accompanied by J.V. While at Mid Town with Gabriel Amparo on June 17 or 18, 1999, J.V. made an appointment for herself at Mid Town for June 22, 1999, at 3:45 p.m., and Gabriel Amparo also made an appointment for June 22, 1999, at 4:00 p.m. At the time J.V. made her appointment for June 22, 1999, she was given new patient forms, which J.V. filled out. On June 22, 1999, both J.V. and Gabriel Amparo arrived at Mid Town approximately 30 minutes late for their appointments. Respondent had already left Mid Town in order to make his rounds at the Hospital. J.V. lost her temper and became upset with the female staff members on duty that day. J.V. and Gabriel Amparo were given the last two appointments for June 23, 1999. J.V. and Gabriel Amparo arrived late for their appointments on June 23, 1999. Respondent, the physician at Mid Town who treated both J.V. and Gabriel Amparo on June 23, 1999, was still at Mid Town. However, the female nurses had already left for the day. J.V. was advised that the female nurses had left for the day. However, J.V. insisted that she be seen by the physician. J.V., was wearing a dark blue dress with flowers that buttoned down the front, from her chest to the middle of her thighs. The staff at Mid Town noted her appearance for the appointment and placed her in an examination room. The examination room contained a sink, chairs, and examination table. Respondent and J.V. discussed her request for a referral to Dr. Ferilta for the insertion of an IUD. Respondent asked J.V. if she was having any health problems. J.V. told Respondent that she thought she might have a urinary tract infection. J.V. identified bladder pain but did not identify symptoms in her pelvic area. At Respondent's direction, J.V. left the examination room, provided a urine sample, then returned to the examination room. Respondent reviewed the results of the urine test, indicated to J.V. that she might have a urinary tract infection, then directed J.V. to lay on her back on the examination table. Respondent directed J.V. to unbutton her dress, probed her abdomen from her stomach to her pubic bone, asked J.V. if she felt any pain, and told J.V. that he would check her vaginal fluid to see if she had any discharge. J.V. was wearing underwear. Respondent did not have on gloves and did not wash his hands before examining J.V. Respondent moved J.V.'s underwear from over her vagina and placed his ungloved finger in, though not all the way in, J.V.'s vagina. Respondent did not say anything to J.V. about her vaginal fluid or discharge. Respondent did not utilize cotton swabs, glass slides, or any other type of instrument in connection with his manipulation of J.V.'s vagina. Respondent did not wash his hands after his manipulation of J.V.'s vagina. Respondent and J.V. were alone in the examination room during the entire time of the incident. Respondent was apparently mistaken in his testimony that Gabriel Amparo came into the examination room towards the end of the examination. Respondent did not: (a) make any sexual comments to J.V.; (b) ask J.V. to go out with him; (c) rub against J.V.; (d) appear to have an erection; (e) fondle J.V.'s breasts; (f) expose himself in any sexual way; and (g) act sexually or seductive in any way. Respondent advised J.V. that he wanted her to give a blood sample the next morning, June 24, 1999, after she had fasted. Upon leaving the examination room, J.V. chatted with Gloria Frum who advised J.V. of the necessity of fasting a period of time before the blood draw the next morning. The blood was drawn at Mid Town on the morning of June 24, 1999. J.V. was apparently mistaken about giving the blood sample on June 23, 1999. During J.V.'s discussion with Gloria Frum after the examination, J.V. made no complaints about Respondent or the manner in which he performed the examination. The referral for the IUD was sent to Dr. Ferilta on June 24, 1999. J.V. was apparently mistaken about not receiving a referral for the IUD. Following the incident with Respondent, J.V. told Gabriel Amparo about what had happened. The next day, J.V. contacted Dr. Ferlita's office and spoke with Debbie Suckow, Dr. Ferlita's office manager. J.V. inquired of Ms. Suckow as to how Dr. Ferlita performed pelvic examinations. J.V. told Ms. Suckow how Respondent had performed her vaginal examination. Ms. Suckow informed J.V. that it was incorrect to perform a vaginal examination without gloves and without a chaperone being present. A short time after talking with Ms. Suckow, J.V. spoke to the Zephyrhills Police Department and made a report concerning the incident with Respondent. J.V. did not report the incident earlier because until she spoke with Ms. Suckow she was not sure Respondent had done anything wrong. The Zephyrhills Police Department referred J.V. to the hotline for Sunrise Domestic Violence and Sexual Assault Center. At Sunrise, J.V. spoke with, and later met with, Lillian Gonzalez, an outreach counselor. After relating the incident to Ms. Gonzalez, J.V. met with Clarice Freese, program supervisor, and related the incident to her. Subsequently, J.V. attended counseling sessions until a transportation problem caused her to stop. Mrs. Gonzalez referred J.V. to an attorney and to the agency regulating physicians in Tallahassee, Florida. J.V.'s testimony concerning the procedure used by Respondent in his examination of J.V. on June 23, 1999, is credible, notwithstanding the testimony of Respondent to the contrary, which I find lacks credibility. The normal course of an examination of a patient who presents with a suspected urinary tract infection does not involve a full pelvic examination, particularly where the patient does not identify symptoms in the pelvic area. The standard of care for a pelvic examination includes the use of gloves and the provision of a chaperone in the examination room. It is not usual and customary to simply push aside underclothing to perform an examination, and a physician would likely be unable to adequately perform an examination by doing so. It is outside the standard of care for a physician to manipulate external genitals with an ungloved finger as part of a pelvic examination. It is outside the standard of care to insert an ungloved finger into the patient's vagina while performing a pelvic examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under Rule 64B8-8.001(2), Florida Administrative Code, and Aggravating and Mitigating Circumstances under Rule 64B8- 8.001(3), Florida Administrative Code, it is recommended that the Board enter a final order finding Respondent guilty of the charges outlined in the Administrative Complaint and imposing the following penalty: (a) One-year's probation, during which Respondent shall attend the Florida Medical Association- sponsored continuing medical education course, entitled Professional Boundaries: Preserving the Physician-Patient Relationship and shall be evaluated by the Physician's Recovery Network; and (b) Assessment of an administrative fine of $2,500.00. It is further recommended that since there was no evidence presented by the Board in its Case No. 2000-01665 that the Board dismiss Case No. 2000-01665 set out in Administrative Complaint in paragraphs 19 through 32, including Counts Four through Six. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Kim Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 A. R. Mander, III, Esquire Greenfelder, Mander, Hanson Murphy and Dwyer 14217 Third Street Dade City, Florida 33523 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
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.
