The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, a physician specializing in psychiatry, on the basis of allegations that he violated subsections (j), (t), and (x) of Section 458.331(1), Florida Statutes, by engaging in a sexual relationship with one of his psychiatric patients.
Findings Of Fact The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License Number ME 0041587. The Respondent was employed by the Nova University Community Mental Health Clinic ("Nova Clinic") in Coral Springs, Florida, from about October of 1987 until September 21, 1989. The Respondent was employed by the Nova Clinic to perform initial psychiatric evaluations of Nova Clinic patients and to manage the medication of the Nova Clinic patients who required medication. In this capacity, on May 11, 1988, the Respondent performed an initial psychiatric evaluation on a Nova Clinic patient named C. P., who was at that time a 17-year- old female patient. An intake evaluation performed on May 10, 1988, and the Respondent's psychiatric examination on May 11, 1988, reveal that C. P. came to the Nova Clinic with a history of depression and a prior suicide attempt at age 14. She had been hospitalized for the previous month at Fair Oaks Hospital. At the hospital she had received treatment for severe depression which resulted from her obsession with a married high school teacher and the loss of that emotional relationship. When admitted to Fair Oaks Hospital, C. P. had experienced some auditory hallucinations, paranoia, suicidal ideation, and social withdrawal. She reported a dysfunctional family history and intense feelings of rejection by her divorced parents. The three-year obsession with her high school teacher and the realization that it would go nowhere was the precipitating factor in the depression that led to her hospitalization. C. P. consistently contended that there had never been any inappropriate physical or sexual contact between herself and the teacher who was the object of her obsession, although she had fantasies that such might eventually happen. During her hospitalization at Fair Oaks there was a remission of her psychotic symptoms and of her overt depressive symptoms, and by the time of her discharge she was gaining insight into her relationship with the teacher. Her Axis I discharge diagnosis was "Major depression, single episode, with psychotic features." Her Axis II discharge diagnosis was "Personality disorder NOS (non specified) with borderline and dependent features." Upon discharge from Fair Oaks Hospital she was to continue outpatient psychotherapy at the Nova Clinic. C. P. began weekly therapy sessions with Dana Bennett, a child therapist at the Nova Clinic, on May 23, 1988, which continued through June 6, 1989. C. P. continued therapy sessions at Nova Clinic with Mary Bertera, a clinical psychologist, from August of 1989 until February of 1990. During her therapy session with Ms. Bennett, C. P. always denied any physical contact between herself and the teacher who had been the object of her obsession. The only two hallucinations experienced by C. P. during the period of her therapy at Nova Clinic occurred while she was taking Prozac or Stelazine. The hallucinations she described were non-sexual in nature. During the period of her therapy at Nova Clinic, C. P. did not make any suicide attempts. While C. P. was seeing the Respondent for medical management at the Nova Clinic, she developed a growing attraction for him. She mentioned this to the Respondent and he suggested that she speak to Dana Bennett about her feelings. C. P. followed his suggestion. On several further occasions C. P. again mentioned to the Respondent her growing attraction for him. The Respondent told her that he was also attracted to her, but that because he was her psychiatrist he could not pursue any sort of relationship with her. On several occasions C. P. asked the Respondent if they could go out for lunch or dinner. The Respondent told her that although he was attracted to her and would like to do so, he could not. Sometime during the fall of 1988 the Respondent had a conversation with Mary Bertera (who was not C. P.'s therapist at that time) during which he discussed his attraction to C. P. During that conversation he mentioned C. P. by name, stated that she had been leaving cards and letters for him, stated that he was attracted to C. P. and that he would not mind going out with C. P. After an automobile accident on December 12, 1988, C. P. called the Respondent for some medication advice. During the course of that conversation C. P. asked the Respondent when they would be getting together. His reply was to the effect that she should not give up hope, that he was going away for the holidays, but would talk with her shortly after New Year's Day. On January 3, 1989, C. P. had a medication management session with the Respondent. Towards the end of their session the Respondent told C. P. that he was getting off work early that evening and asked if she could meet him. She agreed that she would meet him later that same day. At about 7:30p.m. on January 3, 1989, C. P. drove back to the Nova Clinic parking lot, parked next to the Respondent's automobile, and sat in the car she was driving while waiting for the Respondent. Shortly thereafter, the Respondent walked into the parking lot, got into the car with C. P., and C. P. drove the car to Margate Park. There they shared a bottle of wine C. P. had brought with her. While sitting in the car drinking wine, they kissed for the first time. Then they drove to a restaurant where they had drinks and something to eat. Eventually they drove back to the Nova Clinic parking lot where they sat in the car, talked, kissed, and eventually had sexual intercourse in the car. The sexual encounter on January 3, 1989, initiated an intimate sexual relationship between C. P. and the Respondent which continued until October 14, 1989. During the period from January to October of 1989, C. P. and the Respondent engaged in sexual intercourse in a variety of settings; at the home of C. P.'s mother, at the home of one of C. P.'s friends when C. P. was house- sitting, at C. P.'s father's house, at the Respondent's rental apartment, at the Respondent's private office before it was open, and at various hotels or motels. During the time that the Respondent and C. P. were involved in the sexual relationship the Respondent also maintained a social relationship with C. P. and her family. The Respondent took C. P. out to lunch or dinner on numerous occasions. On numerous occasions the Respondent visited C. P. at her father's house and often picked her up at her father's house to take her out for lunch or dinner. On one occasion the Respondent escorted C. P. to a birthday party held at the home of one of C. P.'s aunts to celebrate the sixteenth birthday of one of C. P.'s cousins. During the time that the Respondent and C. P. were involved in the sexual relationship they were often openly affectionate in public places. They often hugged and kissed in public places. During the time that the Respondent and C. P. were involved in the sexual relationship the Respondent gave C. P. gifts of clothing, jewelry, flowers, money, and cards. The gifts of money totaled several hundred dollars. At various times during the course of the sexual relationship, the Respondent told C. P. that he loved her and discussed future plans for the two of them. On at least one occasion he told her he wanted to divorce his wife and marry C. P. Towards the end of August of 1989 the Respondent told C. P. that he had decided that he could not divorce his wife, primarily because of the Respondent's concerns about the effect a divorce would have on the Respondent's son. C. P. became very angry and upset by the information that the Respondent no longer planned to marry her. On August 30, 1989, the Respondent admitted to Carol Trick that he had been having a sexual affair with C. P. for the previous eight months. During the course of his conversation with Carol Trick, the Respondent described some details of the sexual affair that are corroborated by other evidence. A few days later, Carol Trick told the Director of the Nova Clinic that the Respondent had admitted to her that he was having a sexual affair with C. P. The Respondent and C. P. had a final sexual liaison on October 14, 1989, at a motel in Delray. On C. P.'s birthday, October 27, 1989, the Respondent sent her a gold rope chain and a dozen yellow roses. Although C. P. had been relatively happy during the spring of 1989, following the termination of the sexual relationship with the Respondent she became very depressed and developed eating disorders. C. P. discontinued therapy at the Nova Clinic and began psychiatric therapy with Joel Klass, M. D., on February 20, 1990. As of the date of the formal hearing, C. P. was still a patient of Dr. Klass. Based at least in part on her experiences with the Respondent, C. P. continues to be depressed and is distrustful of psychologists and psychiatrists. This distrust has impeded her progress in therapy. Expert medical testimony in this case establishes that sexual intercourse between a psychiatrist and his patient is a clear violation of acceptable standards of care and is explicitly prohibited by psychiatric standards of ethics. Such conduct is a violation and is prohibited even when the psychiatrist functions only in a supervisory or medical management role. Such conduct is a violation and is prohibited even when the sexual activity is initiated by the patient. Any sexual activity between a psychiatrist and a patient violates the mutual trust between the psychiatrist and the patient. There are no circumstances under which sexual activity between a psychiatrist and a patient is appropriate; such conduct is always a departure from acceptable standards of care. A competent psychiatrist should recognize the symptoms of erotic transference in a patient. Where such symptoms are present, if the psychiatrist also feels an erotic interest in the patient the psychiatrist should note the problem in the patient's records, should attempt to deal with it therapeutically, or should transfer the patient to another therapist. Social entanglement between a psychiatrist and a patient of the type described in Paragraph 11 of these findings of fact is also a departure from acceptable standards of care.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case concluding that the Respondent is guilty of all three of the violations charged in the Administrative Complaint and imposing a penalty consisting of revocation of the Respondent's license and an administrative fine in the amount of $5,000.00 for each of the three violations, for a total administrative fine of $15,000.00. DONE AND ENTERED this 29th day of June, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1994.
The Issue The issue in this case is whether the Board of Medicine should discipline and fine the Respondent for an alleged violation of section 456.072(1)(hh), Florida Statutes (2010),1/ for being terminated from a treatment program for impaired practitioners being overseen by an impaired practitioner consultant, as described in section 456.076.
Findings Of Fact The Respondent, Mark T. Ramsey, M.D., held Florida medical doctor license ME76559 beginning on August 21, 1998. The license expired on January 31, 2012, and its current status is "null and void." In 2002, the Respondent was referred to the Professional Resources Network (PRN), which was and still is designated as the State of Florida's impaired practitioners program for physicians. PRN is one of two such programs (the other being the Intervention Project for Nurses or IPN). The purpose of the program is to ensure the public health and safety by assisting practitioners who may suffer from chemical dependency; psychiatric illness; psychosexual illness, including boundary violations; neurological/cognitive impairment; physical illness; HIV infection/AIDS; and behavior disorders. The following services are provided by PRN: confidential reporting of impaired practitioners; investigating incoming referrals and determining appropriate action; conducting interventions on impaired practitioners; arranging for evaluations or treatment of impaired practitioners; coordinating treatment discharge with PRN monitoring; coordinating monitoring between state regional areas and PRN office; proving advocacy for participants who progress satisfactorily; monitoring compliance through a random urine call system; conducting monitoring phone calls with participants; overseeing monitored practitioner support groups; detecting relapses and providing a format for intervention of a relapse at the earliest possible stage; reporting non-compliance of participants to licensing authorities; and performing daily case management of new referrals and actively monitored participants. PRN participants are responsible for complying with the recommendations of the evaluator and/or treatment provider in consultation with the PRN medical director, complying with the terms of the PRN monitoring contract, and meeting financial obligations to care providers, including toxicology testing and PRN facilitator group fees. Witnesses did not characterize PRN as a treatment program because PRN itself does not provide treatment directly. However, their testimony is not controlling on the question of whether PRN is a treatment program for impaired physicians under the Florida Statutes. The Respondent's 2002 contract required him to abstain from mood-altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. In July 2005, the Respondent was admitted to Shands Healthcare and diagnosed with opiate withdrawal syndrome and opiate dependence. Due to this relapse, the Respondent entered into a second monitoring contract with PRN in November 2005. The 2005 contract required the Respondent to abstain from mood- altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. Due to his positive urine drug screen, the Respondent signed a third monitoring contract with PRN in September 2006. The 2006 contract required the Respondent to abstain from mood- altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. In October 2006, the Respondent tested positive for Darvocet2/ on a PRN-ordered urine drug screen. The Respondent did not have a valid prescription for Darvocet at the time he submitted to the urine drug screen. As a result of his positive urine drug screen, the Respondent was required to submit to an evaluation by Dr. Barbara Krantz. Dr. Krantz diagnosed the Respondent with alcohol dependency, cocaine dependency, and opiate dependency. However, Dr. Krantz found the Respondent safe to practice medicine, provided that he limit his working hours to approximately 45 hours per week and continue close monitoring with a psychiatrist and psychologist. From about January through July 2007, the Respondent was prescribed Percocet for pain. Percocet is the brand name for a drug that contains oxycodone and is prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted, but severely restricted, medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. In May 2007, PRN directed the Respondent to either stop taking Percocet or refrain from the practice of medicine. He did neither. The Respondent failed to submit to drug testing during June 2007. On or about July 17, 2007, PRN required the Respondent to voluntarily withdraw from practice. On or about July 30, 2007, the Respondent submitted to a second PRN-ordered evaluation by Dr. Krantz. Dr. Krantz diagnosed the Respondent with opiate dependency episodic, alcohol dependency in remission, and cocaine dependency in remission. Dr. Krantz opined that the Respondent was not able to practice medicine with reasonable skill and safety and recommended that the Respondent enter a customized outpatient treatment program. On or about July 30, 2007, the Respondent began outpatient treatment at the Hanley Center. On or about August 22, 2007, PRN held a staff meeting to discuss the Respondent's case. Rather than dismissing the Respondent from PRN for violating his monitoring contracts, the clinical team opted to require the Respondent to enter six months of residential treatment. On or about September 5, 2007, the Respondent left the Hanley Center "voluntarily to pursue more involved treatment recommended by PRN." The Respondent did not enter into a six-month residential treatment program, as recommended by PRN. On or about September 25, 2007, the Respondent advised PRN that he could not enter a six-month residential treatment program because the Respondent was responsible for paying the living expenses of his brother, who lived in North Carolina. The Respondent indicated that if he were unable to send money to provide for his brother, his brother would be forced to move into a nursing home. In October 2007, the Respondent entered into a fourth monitoring contract with PRN. The 2007 monitoring contract required the Respondent to abstain from mood-altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. Additionally, the Respondent agreed not to be re-evaluated for at least one year (until October 2008) and to refrain from practice until the Department of Health and/or the Board of Medicine rescinded the Voluntary Withdraw from Practice. In March 2008, the Respondent relocated to Wisconsin. In May 2008, the Respondent signed a revised version of the October 2007 contract due to his relocation to Wisconsin. The revised contract's substantive requirements were the same. For approximately a year and a half, while he lived in Wisconsin, the Respondent did not obtain psychiatric treatment or psychotherapy treatment, as required by the revised monitoring contract, because he could not afford it. In 2009, the Respondent requested that he be re-evaluated by a PRN-approved evaluator. The Respondent submitted to an evaluation with Dr. Bayez, who recommended that the Respondent complete an intensive outpatient program. In May 2009, the clinical team of PRN held a staff meeting and decided to require the Respondent to attend an intensive outpatient program, as recommended by Dr. Bayez, and demonstrate one year of complete compliance with his PRN monitoring contract, including obtaining psychiatric and psychotherapy treatment for one year, before PRN would advocate on his behalf before the Board of Medicine. In June 2009, the Respondent signed an addendum to his current monitoring contract which required him to: enroll in an intensive outpatient program (at least three times per week for six weeks) within 90 days (by August 8, 2009); and have one year of complete compliance with his PRN contract before requesting re-evaluation for PRN advocacy with the Board of Medicine. The Respondent completed an intensive outpatient treatment program in June or July 2009. In March 2010, the Respondent signed a revised version of the October 2007 contract due to his relocation from Wisconsin to Florida. The revised contract included the same requirements as the original October 2007 contract, with the exception of addresses and the names of providers. On or about November 23, 2010, the Respondent was selected for a PRN-ordered urine drug screen. The Respondent failed to submit to the urine drug screen. The Respondent advised PRN that he could not submit to the test because he was in North Carolina, and there were no collection sites open near him. The Respondent indicated that he had traveled to North Carolina due to a medical emergency involving his brother. However, the Respondent notified his group facilitator approximately one week before November 23, 2010, that he would be traveling out of state. The Respondent failed to notify PRN that he would be traveling on November 23, 2010. The Respondent was aware that he was required to notify both his group facilitator and PRN of any out-of-state travel. Due to his failure to submit to the urine drug screen, PRN required the Respondent to submit to a hair drug screen upon his return to Florida. On or about November 29, 2010, the Respondent's group facilitator, Ms. Brady, notified him that he was required to submit to the hair drug screen within two weeks. The Respondent did not submit to the required hair drug screen. In 2010, PRN had a loan fund available for doctoral level participants to assist participants with the cost of obtaining evaluations and paying for certain treatment programs. PRN also had an arrangement with a hair drug screen lab, as well as one for urine drug screening with Affinity Online Solutions (Affinity), which oversaw the selection process and compliance with random urine drug screening, and could request that a participant be permitted to test for free, if the participant was unable to afford a drug screening. The Respondent did not request financial assistance from PRN for completing the hair drug screen. Affinity offered a "self-test" feature that allowed participants to create and submit to a urine drug screen on their own initiative in order to document sobriety. The PRN handbook informed PRN participants of this option. The Respondent did not submit to a self-test urine drug screen in lieu of submitting to the hair drug screen. On or about December 1, 2010, the Respondent again failed to submit to a random urine drug screen. On or about December 13, 2010, the Respondent failed to check in to Affinity to determine whether he had been selected for drug testing. On or about January 4, 2011, the Respondent notified his group facilitator that he could not submit to the hair drug screen because he could not afford it. On or about January 5, 2011, PRN held a staff meeting regarding the Respondent's case. During the meeting, the medical director, Dr. Judy Rivenbark, decided to dismiss the Respondent from the PRN because she believed him to be "unmonitorable," based on his recent non-compliance in 2010 and his history of non-compliance with previous PRN contracts. On or about January 6, 2011, Dr. Rivenbark sent a letter to the Respondent notifying him that his case had been referred to the Florida Board of Medicine for appropriate action based on his "continued incidences of non-compliance" with his PRN Dual Diagnosis Monitoring Contract. On or about January 31, 2011, Dr. Rivenbark sent a letter notifying DOH that the Respondent had been terminated from PRN due to the Respondent's continued non-compliance with his Dual Diagnosis Monitoring Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine find the Respondent guilty as charged and fine him $1,000. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2015.
The Issue The issues to be determined are whether Respondent has been convicted of crimes related to the practice or the ability to practice medicine in violation of section 456.072(1)(c), Florida Statutes (2013), by virtue of being found guilty of traveling to meet a minor to engage in sexual contact; unlawful use of a two- way communications device to facilitate the commission of a felony; and using a computer to facilitate or solicit the sexual conduct of a child; and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times relevant to these proceedings, Respondent was licensed as a physician by the State of Florida, and holds license number ME 79663. Respondent is an internist in Perdido Key, where he practices as a solo practitioner. Respondent considers himself to be an “old fashioned physician” who spends 30-45 minutes with each patient. This pace necessitates that he see fewer patients per day than the apparent norm. In mid-to-late 2013, Respondent had reached a cross- roads in his life. He was in the midst of a drawn-out divorce proceeding, and was coming to terms with his sexuality as a gay man. He felt like he was drowning in the paperwork associated with his practice, and was in debt. He was also mildly depressed about his life. While Respondent had come to terms with his homosexuality, he had not told his family and friends and was unsure of their response. Respondent does not drink or smoke, and does not go to bars, so his venues for meeting other men with whom to build any kind of relationship were limited. He decided to post ads on Craig’s List in the “Casual Encounter Section.” One of his ads read in part, “I prefer younger Men. Under 30 is a big plus . . . . No reciprocation required if you come to me, are fit and under 25.” On December 22, 2013, Respondent received a response from a person identified as “Matt.” Respondent corresponded by e-mail with Matt over the next couple of weeks. From the very beginning, Matt described himself as “kinda young.” Respondent responded by saying, “I like young,” to which Matt revealed he was not yet 18. The following day, Matt stated that he had just turned 14 and was inexperienced. Respondent wrote that he would love to meet Matt and “show [him] a few things,” and stated that “I love inexperienced guys that I can take my time with and see them experience the joy of sex for their first time.” Many of the e-mails are quite graphic and reciting their contents would serve no purpose. These e-mails lasted from December 23, 2013, through January 2, 2014. In reality, the person responding to the ad and identified as Matt was not a 14-year-old boy. Matt was actually Zach Ward, an undercover police officer. During Respondent’s e-mail communications with Detective Ward, he offered to meet Matt eight separate times. He was aware that his conduct had criminal implications and noted this fact several times. For example, he advised Matt not to save a photo that he sent to Matt and not to save any of their messages “in case anyone gets ahold of your phone,” and he advised Matt to “be careful what they text,” but that there is “nothing illegal with us kissing and making out.” Respondent even attempted to justify his actions in an e-mail, stating: I have rationalized that it is morally ok if you are the one who instigates it. Clearly doesn’t make it legal. But I think it is almost preferable for a young guy to be able to experiment and play safe and learn from an older person as opposed to playing with a girl your age and ending up getting her pregnant. Yet that is somehow socially accepted but older with younger is not . . . . I have given this much consideration. I feel if the opportunity came knocking at my door, I wouldn’t chase it away. Respondent also spoke to Matt about his practice as a physician. He told Matt that he was a family doctor, and communicated with him by e-mail between seeing patients. He discussed a 16-year-old patient with Matt, identifying the patient by first name; stating that he had seen the patient naked; that he thought the patient was “cute”; and that he wished the patient was gay. In talking about this patient, Respondent told Matt he always asks teenagers about their sexual preference, and also stated: Some people make jokes about pedophiles becoming doctors and teachers. But, as long as they don’t act on their desires and don’t make advances and seduce their patients, I don’t see any harm in it. I think it actually makes me a better doctor. I screen teens for issues like depression, drug use, sexual activity and orientation. I spend a little more time with them than most doctors. But I treat them like a person and don’t just push them out the door. To me, a sexual predator uses their influence to coerce a child into sexual acts. I would never do that . . . . Eventually, Matt and Respondent agreed to meet at a bowling alley near Matt’s purported home. On January 2, 2014, Respondent left his office and traveled to the pre-arranged meeting location at a bowling alley. Upon his arrival, Respondent was arrested. On April 25, 2014, the State Attorney for Escambia County filed a three-count Information against Respondent. The Information alleged that on January 2, 2014, Respondent knowingly traveled within the state to engage in unlawful sexual conduct with a person Respondent believed to be a child less than 18 years old, in violation of section 847.0135(4)(a), Florida Statutes (2013); that between December 23, 2013, and January 1, 2014, Respondent knowingly used a cell phone or two-way communication device to facilitate or further the commission of a felony, i.e., traveling to meet a minor to engage in sexual conduct, in violation of section 934.215, Florida Statutes (2013); and that between December 22, 2013 and January 1, 2014, Respondent knowingly used a computer or internet service to attempt to seduce or solicit another person Respondent believed to be a child less than 18 years old to engage in unlawful sexual conduct, in violation of section 847.0135(3)(a). The Information was filed in Escambia County Circuit Court and docketed as Case No. 1714CF000027A. For some reason that has not been explained, the documents also bear docket no. 2014-CF-000027. Respondent was tried before a jury on January 12, 14, and 15, 2015. Respondent testified on his own behalf during the criminal trial, and claimed that he was aware that Matt was not a young boy, but was in fact an undercover police officer posing as an underage male. He felt law enforcement was targeting homosexuals, and he wanted to use the opportunity presented to him to bring attention to this social issue that he felt needed to be addressed. He also claimed that he was aware there was a good chance that he would be arrested, but viewed it as a way to deal with his growing dissatisfaction with his practice and his need to admit to his family and friends his decision in terms of his sexuality. By its finding of guilt, the jury clearly did not find his claim to be credible. Respondent wrote a letter to his housekeeper the day before the pre-arranged meeting with Matt, telling her that he expected to be arrested and that he believed that Matt was an undercover police officer. The housekeeper found the letter and turned it over to defense counsel. While the letter was not admitted into evidence in the criminal proceeding, it was admitted in this disciplinary case. While Respondent believes that the letter shows that he did not believe Matt to be underage, this disciplinary proceeding is not an opportunity to retry the criminal action. Moreover, Respondent’s claim that he knew Matt was not an underage boy, but rather a police officer, is rejected as not credible. Respondent’s letter to his housekeeper could be just as easily interpreted as an attempt to provide a defense for Respondent should he get caught. Even assuming, for the sake of argument, that Respondent did in fact know Matt was an undercover officer, a finding which the undersigned does not make, his actions are not transformed into a selfless act. Both Respondent’s testimony at hearing and the letter he wrote to his housekeeper evidence a total disregard of the consequences his actions could bring and what effect those actions could have on the continued vitality of his practice and the well-being of his patients. On January 15, 2015, the jury found Respondent guilty of all counts charged. At his sentencing hearing on February 23, 2015, several patients, employees, and a family member testified on his behalf. The circuit court judge withheld adjudication, and sentenced Respondent to two years of community control, followed by 13 years of probation. This sentence represents a downward departure from the criminal sentencing guidelines. Respondent was designated as a lifetime Sex Offender; required to enroll and complete Sex Offender Counseling and any recommended treatment; prohibited from caring for or treating minors without notifying the minor’s parents of his Sex Offender status, and having another staff member present; prohibited from any other contact with those under the age of 18; and prohibited from using a computer unless required for the treatment of patients. Among the many conditions of probation is the requirement that Respondent must work “diligently at a lawful occupation, advise [his] employer of [his] probation status, and support any dependents to the best of [his] ability, as directed by [his] officer.” Respondent’s conditions of community control require check-ins with his Community Control Officer approximately three times weekly, and that he keep his Community Control Officer apprised of his whereabouts at all times. Any travel outside his work schedule must be approved in writing, and Respondent must notify his Community Control Officer in advance of any travel to address a patient emergency. Respondent only has one part-time staff member, a receptionist, available to be present during examination and treatment of minor patients. His receptionist is not licensed by the Department. At hearing, he testified that he no longer sees minor patients. Respondent asserts that his conviction is not related to the practice or the ability to practice medicine, because he had no intent to harm any minor. However, the evidence indicates that he went to the bowling alley for the meeting knowing that his actions would in all likelihood get him arrested. The evidence, taken as a whole, suggests that the encounter was worth the risks to him. This fact alone shows a disregard for the well-being of his patients and their continued care. Moreover, the conditions of his criminal sentence place specific restrictions on his medical practice by requiring the parents of any minor patient to be informed of his Sex Offender status, and requiring the presence of another staff person in the office during any treatment of minors. Further, as noted by Dr. Libert’s testimony, Respondent is prohibited from having contact with minors outside the supervised care of underaged patients. Having a staff member available, even part-time, for supervised patient visits does not address the very real probability of children being present in his office that are related to his patients. Clearly, these restrictions that have been imposed as a result of his convictions are related to the Respondent’s ability to practice medicine. The personal qualities essential to the sound practice of medicine include integrity, respect for the public trust, good judgment, and respect for the well-being of others. Respondent’s actions reflect extremely poor judgment and a violation of both the trust of his patients and the trust society places in physicians. His Sex Offender status undermines the confidence that the public is entitled to have in the judgment and integrity of a health care professional licensed in this state. Patients should not have to check the Sex Offender Registry before placing themselves into the care of a licensed physician. Respondent’s convictions for the crimes charged in the Information are convictions of crimes related to the practice or the ability to practice medicine in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent has violated section 456.072(1)(c), Florida Statutes, and revoking his license to practice medicine. DONE AND ENTERED this 2nd day of December, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of December, 2015. COPIES FURNISHED: Brian Mitchell Lee, M.D. 13020 Sorrento Road Pensacola, Florida 32507 Louise Wilhite-St. Laurent, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) Brynna J. Ross, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Whether Respondent’s refusal to comply with modifications proposed by Professional Resource Network to his monitoring contract violated section 456.072 (1)(hh), Florida Statutes (2017).1/
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of podiatric medicine pursuant to section 20.43, and chapters 456 and 461, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was a licensed podiatric physician within the State of Florida, having been issued license PO 3818. On or about March 24, 2015, Respondent submitted to the Florida Board of Podiatric Medicine (Board) an application for licensure as a podiatric physician. In his application Respondent disclosed prior criminal conduct, which prompted the Board to condition his licensure “upon a positive” evaluation from PRN, which is designated as the State of Florida’s impaired practitioners program for physicians. On or about November 24, 2015, Respondent entered into a monitoring contract with PRN. The PRN monitoring contract was for a term of five years. According to the PRN participant manual, the following are the types of monitoring contract components provided to health care professionals: Chemical dependency (CD); Substance abuse; Psychiatric; Dual (CD/Psych); Behavioral; Physical impairment; Concurrent (2 or more problems); Boundary; Specialized; Chronic pain; and, Diagnostic monitoring. At its inception, Respondent’s PRN monitoring contract was a “concurrent type,” which offered “boundary and psychiatric” component monitoring services. The PRN monitoring contract contains the following provisions: The terms set forth in this Contract, including its duration, may be subject to change if PRN, in its sole clinical discretion, concludes that additional, higher, or otherwise different, types and levels of monitoring and other contract obligations are necessary to ensure the Participant is able to practice with skill and safety and otherwise progress through the program. * * * Once this Contract becomes effective, any modifications to this Contract are effective only when made in writing and signed or initialed by both the PRN Medical Director and Participant. Related to the above contractual provisions, is the PRN Participant Manual, Participant Rights statement, which advises individuals that they have “the right [t]o refuse to participate in any or all of the components of PRN, [and that] to do so may result in a formal report to the Department of Health and [their] Board.” On or about March 31, 2016, the Board granted Respondent a license to practice as a podiatric physician in the State of Florida. Although Respondent was issued a license by the Board, there is no evidence that Respondent has ever engaged in the practice of podiatry in the State of Florida. From its inception through November 2017, Respondent was in compliance with the terms of his PRN monitoring contract. However, events commencing around mid-July 2017 eventually culminated in Respondent opting out of the PRN program. On the morning of July 11, 2017, Respondent contacted his compliance manager at PRN. Respondent, among other things, informed his compliance manager that he was not working as a podiatrist, was struggling financially, his girlfriend had undergone multiple major surgeries and was having a difficult recovery, and he was taking Cymbalta, Adderall and Xanax. The compliance manager immediately shared the new information received from Respondent with the PRN medical director who, after considering Respondent’s history of DUIs, and his psychological history, determined that Respondent should be referred for a multi-disciplinary evaluation. At 10:34 a.m. on July 11, 2017, PRN advised Respondent via e-mail that he was being referred for a multidisciplinary evaluation and that the same must be completed before Respondent would be allowed to return to the practice of podiatry. On September 12, 2017, Respondent complied, and offered himself for the multidisciplinary evaluation prescribed. The multidisciplinary evaluation team diagnosed Respondent with alcohol use disorder – moderate, evaluate for severe; sedative use, evaluate for use disorder; opioid use, evaluate for use disorder; stimulant use, evaluate for use disorder; persistent depressive disorder (dysthymia); narcissistic traits; paranoid and dependent features, likely borderline and avoidant features; and history of lumbar pain. The multidisciplinary evaluation team opined that, prospectively, Respondent will not be able to practice as a podiatric physician in the State of Florida with reasonable skill and safety and recommended that Respondent enter a PRN approved residential treatment program. The evaluation team also recommended that Respondent be placed on a PRN monitoring contract, with a new contract start date, following completion of the residential program. On or about October 6, 2017, PRN discussed the findings and recommendations of the multidisciplinary evaluation with Respondent. On November 6, 2017, PRN offered Respondent four options for PRN approved treatment programs, and imposed a deadline of November 13, 2017, to enter treatment. PRN also requested that Respondent execute a voluntary withdrawal from practice form and return it to PRN the following day. On November 6, 2017, Respondent notified PRN that he specifically was not going to enter treatment as recommended by the multidisciplinary team and that generally he was no longer going to participate in any PRN program. Respondent has not returned an executed voluntary withdrawal from practice form as requested by PRN, nor has Respondent entered treatment as directed by PRN. On January 16, 2018, PRN terminated Respondent’s PRN monitoring contract and Respondent has not reentered the program. Respondent testified that if he were ordered by the Board to reenter PRN, he may be unwilling to comply, unless he finds the terms favorable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Podiatric Medicine enter a final order: finding that the Respondent violated section 456.072(1)(hh); and suspending his license until such time as he demonstrates his ability to practice with reasonable skill and safety as evidenced by Respondent entering into and complying with a PRN monitoring contact. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2018.
