The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(j), 458.331(t), and 458.331(1)(x), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0043763. The Respondent specializes in general medicine and is not board certified. On November 25, 1996, patient A. J., a 28-year-old female, presented to the Respondent for the purpose of having a physical examination performed by a physician. The patient A. J. sought the physical examination for the purpose of complying with requirements of the Immigration and Naturalization Service ("INS"). The patient A. J. brought with her an INS physical examination form. The form included instructions to the person to be examined, as well as instructions to the physician who would perform the examination. The instructions to the person to be examined included: "The doctor will examine you for certain physical and mental health conditions. You will have to take off your clothes." The instructions to the physician performing the examination included the following: Please medically examine for adjustment of status the individual presenting this form. The medical examination should be performed according to the U. S. Public Health Service "Guidelines for Medical Examination of Aliens in the United States" and Supplements, which have been provided to you separately. The Respondent was familiar with the INS guidelines for medical examination of aliens in the United States, because he had previously performed such examinations on numerous occasions, and he was a physician who had been approved by the INS to perform such examinations. At the time of the examination of the patient A. J., those guidelines were incorporated in a document titled Technical Instructions for Medical Examination of Aliens in the United States, dated June 1991. At page I-1, the technical instructions included the following in a description of the role of the civil surgeon: The civil surgeon is responsible for reporting the results of the medical examination and all required tests on the prescribed forms. The civil surgeon is not responsible for determining whether an alien is actually eligible for adjustment of status; that determination is made by the INS officer after reviewing all records, including the report of the medical examination. (Emphasis added.) At page II-2 the technical instructions included the following description of the required physical examination: d. a physical examination, including an evaluation of mental status, sufficient to permit a determination of the presence and the severity of Class A and Class B conditions. The physical examination is to include a mental status examination that includes, at a minimum, assessment of intelligence, thought, cognition (comprehension), judgment, affect (and mood), and behavior. a physical examination that includes, at a minimum, examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia. all diagnostic tests required for the diagnosis of the diseases identified as communicable diseases of public health significance and other tests identified as necessary to confirm a suspected diagnosis of any other Class A or Class B condition. At all times material to this case, for purposes of INS physical examinations, Class A conditions were: Chancroid, Chronic alcoholism, Gonorrhea, Granuloma inguinale, Hansen's disease (infectious), HIV infection, Insanity, Lymphogranuloma venereum, Mental defect, Mental retardation, Narcotic drug addiction, Previous occurrence of one or more attacks of insanity, Psychopathic personality, Sexual deviation, Syphilis (infectious), and Tuberculosis (active). Class B conditions were: Hansen's disease (not infectious), Tuberculosis (not active), and "Other physical defect, disease or disability." At page II-2, the technical instructions clarified that: "The responsibility of the civil surgeon is only to conduct the examination and testing required to determine the alien's status regarding Class A and Class B conditions and to complete the medical report form. . . . If the alien needs further evaluation or treatment for conditions not relevant to the medical examination, the physician should advise the alien of this and should make recommendations for appropriate diagnostic evaluation and treatment." The patient A. J. had an appointment for 5:00 p.m. She had requested a late afternoon appointment to minimize the time she would miss from her work. When the patient A. J. arrived at the Respondent's office, the Respondent was the only other person present in the office. During the entire time that the patient A. J. was in the Respondent's office on November 25, 1996, the only people in the office were the patient A. J. and the Respondent. Upon her arrival, the Respondent took the patient A. J. to an office, where she filled out some paperwork, including her name, address, and telephone number. The Respondent inquired as to exactly where on her street her residence was located. The Respondent made repeated inquiries about the location of the patient's residence and even asked the patient to draw a map to her residence. The Respondent asked the Patient A. J. if he could stop by her house sometime. The patient A. J. said, "No." The Respondent also asked the patient A. J. if she was married and if her marriage was "real." After finishing the paper work, the Respondent took the patient A. J. into a laboratory room, where he drew blood for two of the tests, and also administered the agent for the skin test for tuberculosis. The Respondent then took the patient A. J. to an examination room, gave her a gown, and instructed her to remove her clothing. The patient A. J. inquired as to whether she should remove her underpants. The Respondent replied, "Only if you want me to do a pelvic." The patient A. J. thereupon told the Respondent that she was due for a PAP test and that she needed birth control pills. The Respondent told the patient A. J. that it would be a good idea for her to start using birth control pills, in case she wanted to do anything while her husband was not around, because the pills would be added protection against pregnancy. The patient A. J. told the Respondent that she did not sleep around, to which he replied, "You can never tell what will happen." During the entire time the patient A. J. was in the Respondent's office, there was music playing in the office. The physical examination included an examination of the patient's breasts. While examining the patient's breasts, the Respondent sang along with the music. The Respondent also commented to the patient A. J. that the singer on the background music, Luther Vandross, was the greatest love song singer of all time. Following the examination that was required by the INS, the Respondent performed an internal pelvic examination of the patient A. J. This was an examination that involved the insertion of instrumentation and the insertion of the doctor's fingers into the vagina of the patient. The Respondent took an excessive amount of time in performing the internal pelvic examination. During the course of the internal pelvic examination, the Respondent told the patient A. J. that she had a heavy discharge. He then proceeded to ask her how often she became sexually aroused and how easily she became sexually aroused. During the course of the internal pelvic examination the patient A. J. became worried and asked the Respondent if the two of them were the only people in the office. The Respondent replied in the affirmative. The patient then began to feel afraid when it was confirmed that she was alone with the Respondent. Her fear arose from the fact that she was alone with a physician who had been making what she considered to be inappropriate comments and questions about her marriage, her affairs, and her sexual arousal. The internal pelvic examination of the patient A. J. was not required by the INS. The Respondent would not have conducted an internal pelvic examination of A. J. if she had not requested that such an internal examination be performed. The specific reasons for which A. J. requested, and consented to, an internal pelvic examination was to have a PAP smear performed and to determine if she had any condition that would contra-indicate the use of birth control pills. The patient A. J. believed that a physician could not, or would not, prescribe birth control pills without first conducting a PAP smear and an internal pelvic examination. The patient was correct in this belief. Acceptable standards of medical practice mandate that a physician perform a PAP smear and conduct an internal pelvic examination prior to prescribing birth control pills to a patient. If the Respondent was not going to perform a PAP smear and was not going to prescribe birth control pills, there was no reason for him to perform an internal pelvic examination of the patient A. J. During the course of the internal pelvic examination, the Respondent did not do a PAP smear of the patient A. J. The Respondent also refused to prescribe birth control pills for the patient A. J. When the patient repeated her request for a prescription for birth control pills, the Respondent replied that he could not prescribe the birth control pills for "personal reasons." When the patient inquired as to what he meant by "personal reasons," the Respondent said that he did not want to establish a doctor/patient relationship with the Respondent "because you can never tell what the future might bring." The Respondent also said to the patient A. J. that "in the future we might get involved," and he went on to explain that if that were to be the case, he could get in trouble if he were to be her doctor. The Respondent also told the patient A. J. that she was "too charming" to be his patient, and mentioned again that he didn't want to prescribe the birth control pills for her "because he didn't know if in the future we might have an affair," and for that reason he did not want to get into a doctor/patient relationship with the patient A. J. During a discussion following the examination, the Respondent asked the patient A. J. to return the following Friday (the day after Thanksgiving) to obtain the results of her blood tests and to have her skin test read. The patient told the Respondent she had plans for the long weekend and asked if she could return on Wednesday. The Respondent agreed that she could return on Wednesday. He also inquired about her weekend plans. The patient A. J. told the Respondent that she was going on a fishing trip with a girlfriend. Thereupon the Respondent asked the patient if she would go fishing with him sometime. He went on to mention that someone had given him some new fishing equipment that he had never had a chance to use. When patient A. J. asked how much she owed for the examination, the Respondent replied, "the cost is usually $2,000.00, but for you it will only be $120.00." As the patient A. J. was exiting the Respondent's office, the Respondent followed her out to her car. The patient had not asked the Respondent to escort her to her car and his presence made her nervous because she did not know his purpose in following her out to the car. As a result of the Respondent's comments and conduct, the patient A. J., in her words, "felt violated." The patient felt that many of the Respondent's comments and questions were inappropriately personal. She also felt that the Respondent had taken advantage of her by conducting an internal pelvic examination for the purported purpose of performing a PAP smear and determining if there was any condition that contra-indicated her use of birth control pills, and then not performing a PAP smear and not prescribing birth control pills because of the Respondent's interest in the possibility that they might have a future affair. Two days later, on Wednesday, November 27, 1996, the patient A. J. returned to the Respondent's office for the purpose of obtaining the results of the blood tests and to have her skin test read. On this occasion the patient was not alone with the Respondent at any time and she had only minimal contact with him. The Respondent did notice that the patient seemed to have a hostile attitude. On Friday, November 28, 1996, the Respondent called the home telephone number of the patient A. J. The patient was home, but she did not answer the telephone. The Respondent left a message on the patient's answering machine to the effect that he was just calling to "touch base" and that he would call her again later. There was no medical purpose for the telephone call. The comments and questions the Respondent made to the patient A. J. regarding such matters as whether her marriage was real, commenting that she was charming, asking her to go fishing with him, suggesting the possibility of a future affair, requesting a map to her house, asking if he could come visit her, and asking about her sexual arousal, all constitute inappropriate and unacceptable conversation by a physician to a patient. Comments and questions of this nature may reasonably be interpreted by the patient as being sexual in nature. It is a departure from accepted standards of medical practice for a physician to perform an internal pelvic examination on a patient without also having a third person in the examination room. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an internal pelvic examination on a patient without also having a third person in the examination room. It is a departure from accepted standards of medical practice for a physician to perform an unnecessary internal pelvic examination on a patient. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an unnecessary internal pelvic examination on a patient.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing the charge in Count Three of the Administrative Complaint; Concluding that the Respondent has violated Sections 458.331(1)(j) and 458.331(1)(t), Florida Statutes, as charged in Counts One and Two of the Administrative Complaint, and Imposing a penalty for those violations consisting of (a) a letter of reprimand, (b) an administrative fine in the amount of $5,000.00, (c) suspension of the Respondent's license for a period of one year, and (d) placement of the Respondent on probation for a period of one year immediately following the period of suspension, with probation terms to be established by the Board of Medicine. Further, during the period of suspension, the Respondent should be required to attend courses to be determined by the Board of Medicine covering the subject matters of the patient-physician relationship and medical ethics. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.
The Issue The issues in this case, as set forth in the Prehearing Stipulation, are as follows: Whether Respondent was terminated from the State Medicaid Program; [Case No. 14-2488, Count I] Whether Respondent failed to update his practitioner profile within fifteen days of the filing of the order terminating him from the State Medicaid Program; [Case No. 14-2488, Count II] Whether Respondent exercised influence within the patient-physician relationship with T.J.[1/] for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with T.J.; [Case No. 14-1342, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with M.B. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with M.B.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with C.J. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with C.J.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with D.K. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with D.K.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with A.H. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with A.H.; [Case No. 14-1343, Counts I & II] and Whether Respondent exercised influence within the patient-physician relationship with S.D. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with S.D. [Case No. 14-1343, Counts I & II]
Findings Of Fact Petitioner, Department of Health, Board of Medicine (the “Department”) is the State agency responsible for licensing and monitoring physicians in the State of Florida. The Department regulates the practice of medicine in accordance with section 20.43 and chapters 456 and 458, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification. Respondent is a licensed Florida physician, certified in the area of pain management, holding license number ME 97134. At all times relevant hereto, Respondent was practicing medicine at one of two locations: the Back Authority for Contemporary Knowledge, (a pain management clinic known as the “Back Center” located in Melbourne, Florida); and Advantacare (in its Altamonte Springs and Daytona Beach offices). Respondent was employed at the Back Center from January 2008 through September 2011, and at Advantacare from March 2012 through April 2013. Respondent provided pain management services for numerous patients during his tenure at each of the clinics. While at the Back Center, he saw 50 to 60 patients per day in an 8-hour workday, doing about 15 medication injections per day. At Advantacare he was seeing about 30 patients per day. By all accounts, Respondent is a skilled and proficient pain management physician. At Advantacare, Respondent would see patients for regular office visits at the Altamonte Springs office on Monday, Tuesday, Thursday, and Friday; Wednesday would be set aside for administering injections under a fluoroscope, described as sort of a C-shaped X-ray machine, performed at the Daytona Beach office. None of the sexual behavior alleged in the Administrative Complaints occurred during injections performed under fluoroscope. A general policy existed at the Back Center that required physicians to have another facility employee (medical technician, nurse, other) present in an examination room when a physician was providing care to a patient not of the same gender as the doctor. This “chaperone” policy is standard in the health care industry. There is no credible evidence that Respondent was ever shown the Back Center’s policy in writing, although it is probable the policy was accessible on the website of the entity (Osler Corporation) that owned the Back Center for a period of time. As a practicing physician, Respondent was also presumed to be aware of and to follow the chaperone policy and he admitted knowing about the policy in general. Respondent was, however, verbally apprised of the policy by his supervisor, Dr. Hynes, by the clinic operations manager, Mr. Pachkoski, and by the chief administrative officer, Cathy Bird. Respondent acknowledged that it was best to have another person in the examination room if he was providing treatment to a female patient. If no chaperone was available, it was his stated practice to keep the door open. Respondent did not feel like assistants were always available to chaperone, but neither his supervisor (Dr. Hynes) nor a co-physician (Dr. Zaidi) remembers Respondent complaining that staff was not available at the Back Center. The testimony of all six complainants in this case contradicts Respondent’s contention; each of them said they were treated by Respondent (alone) in a room with the door closed. When asked directly whether he ever treated female patients at the Back Center in a room with the door closed, Respondent admitted that it happened on occasion. The best and most persuasive evidence in this case is that a chaperone policy did exist and that Respondent did not follow the policy. Between September 2008 and January 2013, Respondent treated six female patients who are the subjects of the Department’s Administrative Complaint. Each of the patients is identified only by their initials in an attempt to maintain their confidentiality and privacy. The six patients will be addressed in chronological order based on the dates of their alleged mistreatment by Respondent. Patient S.D. Patient S.D. was a patient of Respondent between September and December 2008. S.D.’s status as a patient was stipulated to by the parties.2/ While she was Respondent’s patient, S.D. was also an employee of the Back Center. During the period of time Respondent was treating S.D., they engaged in a series of emails which could be construed as very sexual in nature. For example, on September 23, 2008, Respondent and S.D. had the following email exchange: S.D. – “You buying Dinner….Or am I your [f***ing] dinner????”Respondent – “What do you think? I want u as breakfast, lunch and dinner. My precious love.” S.D. – Ok so what am I going to eat LOL??? Let me guess a protein shake”Respondent – “If I shake it hard enough yes.” Then, on September 25, the two had this email exchange:Respondent – “NO I WANT U TO FEED ME!!! AND NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!! I’M UR MAN AND I SAY NO.”S.D. – “Then act like it and stop flirting with the [f***ing] skank!”Respondent – “WHY? GETTING JEALOUS SWEETHEART?”S.D. - “No I guess I have no reason to be.” Respondent – “EXACTLY, YOU HAD ME AT LUNCH AND LEFT TO GO TO WORK. SO YOU CAN’T SAY ANYTHING, PRECIOUS.” Respondent denies that the exchange of emails with S.D. suggests anything of a sexual nature. He said, e.g., that in his Iranian culture, talking about eating someone was tantamount to saying you cared deeply for them. Respondent’s denial of the sexual nature of the emails is not persuasive. S.D. did not testify at final hearing nor was her testimony preserved by way of a deposition transcript. The Department offered into evidence an exhibit comprised of various emails between S.D. and Respondent, two of which were discussed above. At least one co-worker, Lizamar Korfhage (a physician’s assistant at the Back Center), heard S.D. yell loudly in the office--as S.D. was being terminated from employment--that she (S.D.) and Respondent were having sexual relations. Cathy Bird, former chief administrative officer at the Back Center, had discussed the alleged affair with S.D. during several conversations before S.D.'s employment with the Back Center ended. Bird also talked with Respondent about the situation after S.D. was fired from the Back Center. Respondent was concerned that S.D. would tell Respondent’s wife about the affair and sought Bird’s guidance in the matter. Based upon the entirety of the clear and convincing evidence presented, Respondent was involved in a sexual relationship with S.D. at some point in time when S.D. was also a patient of the Back Center. Patient T.J. Patient T.J. was a 37-year-old patient when she saw Respondent at the Back Center on October 29, 2010. T.J. had seen Respondent professionally some 16 or so times previously. No inappropriate conduct had occurred on any of those visits. On the October 29 visit, T.J. was escorted into an examination room by a nurse as usual. Respondent came in and, after examining her, suggested that trigger point injections might help alleviate her pain, which she described as being a “2” on a scale of 1 to 10.3/ She agreed to the plan of treatment. Respondent had T.J. sit on an armless stool and lean her arms and head onto a desk. Respondent stood on her left side and began administering injections into her neck. As he leaned against her body, T.J. felt what she described as Respondent’s erect penis rubbing on her upper arm or shoulder. She felt like Respondent was intentionally rubbing her in what she later concluded to be a sexual manner. When he finished the injections, Respondent did not act any differently than usual. T.J. felt like something “weird” had just happened, but decided not to report it because she was not completely sure about her perceptions. Respondent, in contradiction to T.J.’s testimony, said he generally stayed four to five inches away from his patient when administering the injections, but would sometimes come into contact with them. T.J. returned for a follow up visit on November 24, 2010, receiving another injection by Respondent. She reported no misconduct by Respondent on that date. On December 23, 2010, T.J. returned to the Back Center for additional treatment. This time, her pain was radiating all the way down to her buttocks area and was described as a “3” out of 10. She was again escorted to an examination room to wait for Respondent. Respondent came in and closed the door, as was his usual practice during T.J.’s visits. After examining her, Respondent suggested injections for sacroiliac joint pain. T.J. was told to lie on the examination table on her left side. Respondent had T.J. lower her jeans to just below her knees. She had her left leg out straight and her right leg bent at the knee and across her left leg. Respondent then began to press his fingers on different parts of her inner thigh searching for the source of her pain. The pain was centered between her knee and buttocks area, and Respondent made an injection in that area. Respondent then had T.J. roll over to her right side as he pulled the table slightly away from the wall and placed himself between the wall and the table. Respondent began pushing on her inner thigh again, starting at her knee and moving upward toward her buttocks. As he did that, his tone of voice changed and he began panting. He continued to touch and probe her thighs as his hands went higher until he ultimately touched her vagina. T.J. immediately said, “That’s it” and quickly got off the examination table and pulled up her jeans. Respondent appeared sweaty and red-faced, looking to T.J. like a person who had just engaged in sex. T.J. then began to consider whether Respondent’s behavior during the October 29, 2010, visit had indeed been sexual in nature as well. She concluded that it was, and decided not to see Respondent for treatment in the future. She did not, however, report either of the incidents to the Back Center immediately. She ultimately did so, telling physician's assistant Korfhage about the incident some 10 months later. After seeing a report on television in 2013 that Respondent had been accused by another patient of sexual misconduct, she decided to make a report to the police about her own experiences with Respondent. When the police did not prosecute, she contacted an attorney in order to file a civil action against Respondent. T.J. appeared to be honest and forthright during her appearance at final hearing. Her testimony about her version of the events was credible, clear, and convincing. In his testimony at final hearing, Respondent did not specifically refute T.J.’s testimony so much as he explained how his normal process would not allow for the kind of touching T.J. alleged to have occurred. Respondent did not specifically or directly deny touching patient T.J.’s vagina, saying only that there would be no reason to do so. Patient D.K. (also known as D.W.) D.K. was a regular patient of Respondent and the Back Center. She had an appointment on January 13, 2011, to see Respondent for pain she was experiencing in her lower back and sides. On previous visits to the Back Center, Respondent had done localized injections to help D.K. deal with the pain. On those visits, she had simply rolled her pants down below her waist and leaned against the examination table in order for Respondent to do the injections. On the January 13 visit, she was told to lie on the table and pull her jeans down to her knees while Respondent went to prepare the medications. Respondent returned, closing the door as he came into the room. Respondent began injecting medications into her back and both sides. He then moved lower and administered injections into her thighs although she had not complained about any pain in that area. Respondent then moved her jeans down to her ankles and began administering injections into her calves. While he was injecting her, she felt him rubbing his erect penis against her thighs and heard his breathing get heavier. She could also feel Respondent lean closer to her and felt his breath on her thighs as he injected her calves. After the injections were complete, D.K. said Respondent was sweating, flushed, and “looked like my husband after we’ve had intercourse.” D.K. left the office and returned to her car. She immediately began to mentally process what had occurred to her, but did not immediately tell anyone at the Back Center. She was shocked and upset by the event but waited a few days before telling her husband what had happened. She then reported the events to someone at the Back Center. The Back Center asked her to come in so she could discuss the situation with Dr. Hynes, medical director of the Back Center. Later, D.K. made a complaint to local law enforcement about the incident. D.K. has also contacted an attorney to look into filing a civil lawsuit against Respondent. In response to the complaint by D.K., Dr. Hynes mandated that Respondent have a medical assistant with him during any contact with female patients. Despite the prohibition, Respondent continued to see female patients in an examination room without others present. He was confronted several times by the site operations manager about this violation, but Respondent did not change his behavior. D.K. was a credible witness. She provided a clear and unequivocal description of what transpired during her visit to the Back Center on January 13, 2011. Patient C.J. Patient C.J. presented to the Back Center experiencing pain as a result of shrapnel wounds received while she was serving in the U.S. Army in Afghanistan. C.J. did not testify at final hearing so her physical demeanor could not be assessed. Her deposition transcript was admitted into evidence over objection. In May 2011, C.J. was referred to the Back Center by her treating physician at Patrick Air Force Base. She took the referral, called the Back Center, and was assigned to Respondent for pain management services. C.J. went to the Back Center on May 4, 2011. She was experiencing significant pain and was physically uncomfortable. C.J. was processed in by a receptionist and then led to an examination room by a female employee. The employee took C.J.’s blood pressure, gathered some personal information, and left the room. On that date, C.J. was wearing jeans, a blouse, and open- toed shoes. She had on “full underwear” that day. Respondent came into the room and examined C.J. as she sat on the examining table. He advised C.J. that an injection might benefit her. As C.J. remembered it, the injection was to be in the side of her neck, and then in her back or hip. Respondent left the room to obtain the medications as C.J. waited. Upon his return to the room, Respondent injected Depo- Medrol 40 mg, Toradol 30 mg, Lidocaine 2% 0.5 mL, and Marcaine 0.5 mL into the left side of her neck. After the initial injection, Respondent left the room while the medication took effect. C.J. began to feel very relaxed and sleepy. Respondent recollects that C.J. complained of feeling light-headed, but does not believe any medication he injected would have caused that to happen. Respondent later returned to the room and prepared to give C.J. another injection into her hip area. She sat up on the table as Respondent pulled one end of the table slightly away from the wall.4/ After moving the table, Respondent had C.J. lie down on her side, lift her blouse, and unbuckle her jeans. She then slid her jeans and underwear down past her hips as directed. At that point, Respondent began injecting a solution into C.J.’s hip. As the injection was proceeding, she felt Respondent slide his hand over her hip and “in my groin area.” While doing that, Respondent’s crotch was pressed against C.J.’s buttocks. C.J. felt what she believed to be Respondent’s erect penis pushing against her buttocks as he administered the injection. After the injection was completed, Respondent came around from behind the table and told C.J. she would need to come see him again in a few weeks. C.J. got up from the table and began to realize that “something was not right” about the treatment she had just received. When C.J. went to the front desk to check out, she asked a nurse to identify the medications which had been injected but was unable to get that information. C.J. then left the Back Center and immediately called her nurse case manager at Patrick Air Force Base to report what had occurred. Her nurse advised C.J. to call 911 to report the incident; C.J. did so as she walked out to her car in the parking lot. A policeman arrived some 20 minutes later and took her statement. The officer then went inside to talk to Respondent. He said Respondent appeared to be surprised and shocked by C.J.’s allegation. The police decided not to file any charges against Respondent based on C.J.’s complaint. The reporting police officer (Middendorf) seemed to question C.J.’s veracity or truthfulness on the day of the incident. He said C.J. was upset and seemed lethargic, except when she was talking on the telephone to “one of her superiors.” According to Middendorf, C.J. acted consistent with someone who may be under the influence of drugs. He did acknowledge that C.J. had just come out of a pain management clinic. Middendorf also felt C.J. was either confused or not telling the truth concerning where Respondent had allegedly touched her. C.J., who was obviously distraught at the time, indicated both her pubic area and her outer thigh when she told Middendorf that Respondent had touched her “groin.” Middendorf challenged her about that and C.J. became defensive and argumentative. He did not provide any credible testimony as to why he believed she might be lying to him. His statement that C.J.’s voice changed when she was talking to her office on the phone is not conclusive evidence that she was not telling him the truth. C.J. never returned to the Back Center. She obtained pain management treatment elsewhere. Inasmuch as C.J.’s demeanor could not be judged because she did not appear in person, her testimony must be considered using other factors. In this case, the testimony was very similar to the facts described by other patients of Respondent concerning their treatment by him. The events as described by C.J. were believable and convincing, especially when compared to the allegations by other alleged victims. Neither C.J. nor any of the other alleged victims/complainants has talked to other alleged victims about their experiences, so there does not appear to be any collusion between the victims. Patient M.B. Patient M.B. was already a regular patient at the Back Center when she first saw Respondent on July 7, 2011. Respondent’s notes in M.B.’s chart indicate the patient was presenting for “initial evaluation” that day, but that was not correct; she had already been seen several times by other physicians at the Back Center. M.B. had chronic lumbalgia (low back pain) and lower extremity dysesthesia (a burning sensation) which was increasing progressively. Respondent examined M.B., discussed his findings, and scheduled a follow-up appointment for August 2, 2011, at which time he gave her an injection of 1% Xylocaine with approximately 30 ml of Lidocaine 1% on both of her side hips. He also injected a block with a solution containing 2 ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo- Medrol 80 mg into M.B.’s joints. M.B. reported no suspicious or untoward behavior by Respondent during the July 7 and August 2 appointments. On August 29, 2011, M.B. returned to see Respondent. She presented with pain in her hips and left side. Nurse Bobbi McDonald escorted M.B. to the examination room and took her vital signs before leaving. Respondent came into the room, alone, and closed the door. At that visit, M.B. was wearing khaki mid-thigh cargo shorts, a blouse that tied around her neck, and bikini underwear. Respondent asked about her pain, touched points on her body to identify the exact pain locations, and adjusted her back manually. He then suggested injection of a steroid as a stop-gap measure prior to scheduling her for a fluoroscope injection later. M.B. agreed to the plan. Respondent left the examination room to get the medication. When he returned, he was alone and again he closed the door. Respondent told M.B. to pull her shorts down below her waist and to cover herself with a paper gown. She pulled her shorts and underwear down about halfway across her buttocks, which was lower than she would normally pull them for fluoroscope injections. Respondent began to clean the area for the injection and asked M.B. to pull her garments down further, below her buttocks. Respondent then pulled the table out from the wall and he went between the table and the wall. He injected M.B.’s hip about five times with a solution containing Depo Medrol 80, Toradol 60, Lidocaine, and Marcaine 1 ml. As he injected her, M.B. could feel Respondent’s groin touching her hip. She could feel what she believed to be Respondent’s erect penis rubbing against her in a back and forth motion. By this time, her paper gown had fallen off, exposing her buttocks and vaginal area. After the last injection, M.B. felt Respondent’s fingers touching her vagina. As she pushed upward to get off the table, M.B. felt Respondent touch her vagina again. She got off the table, pulled up her pants, and sat down as the doctor began talking to her. M.B. did not say anything to Respondent. She immediately believed that she had been sexually assaulted, but was too confused and shocked to say anything to anyone. M.B. did not initially report Respondent’s behavior to the Back Center. She later reported her allegations to the Melbourne Police Department and also filed a civil lawsuit against Respondent and the Back Center. (M.B. would continue to return to the Back Center, but did not see Respondent again for any of her treatments.) M.B.’s testimony was not as immediately believable as that of some of the other witnesses. Based on her personality, fear of the process, or some other factor, she seemed to be fairly emotionless in describing the incident. However, inasmuch as her testimony was corroborated by what other patients had experienced, her clearly enunciated statements are convincing. Further, M.B. exhibited extreme visual cues as to her intense dislike for Respondent at the final hearing. The testimony of M.B. alone would not be clear and convincing evidence of any wrongdoing by Respondent. However, her testimony is corroboration of and support for the testimony of other victims. Respondent's employment at the Back Center was terminated shortly after M.B.'s appointment with him. There is no evidence as to Respondent's employment from September 2011 until he went to Advantacare in March 2012. Patient A.H. Patient A.H. presented to Advantacare (Daytona Beach office) on January 9, 2013, in an effort to address pain she was suffering as a result of an automobile accident that occurred in October 2012. She wanted to reduce her pain while also reducing the amount of medications she was taking. A.H. had a job which required driving, so she needed to be as drug-free as possible. A.H. was escorted to the examination room. She remembers that Respondent came in, closed the door, and propped it shut. Respondent remembers the door to that room being open, that it would open by itself unless something was placed against it. The medical technician assigned to Respondent said the door did not have any problems, but it would always be half open. There is no corroborated evidence as to whether the door to the room was open, closed, or ajar when A.H. was being examined. Respondent examined A.H. and began to show her some exercises and stretches that he thought might alleviate some of her pain. As she was sitting in a chair being shown how to stretch, A.H. felt Respondent’s erect penis pushing against her back. She quickly told Respondent “I’ve got it” in order to stop his actions. She got up quickly and moved to another chair in the office. A.H. clearly described what she had felt and had no confusion or doubt about what happened. Her testimony about the incident was credible. Respondent then told A.H. to lie on the table on her side with her arms stretched out in front of her. Despite what had just happened, A.H. complied with his directions.5/ When she got into position, Respondent had A.H. move her body over to the very edge of the table and began to manipulate her back. As his hands continued down her back, she felt his hands go down inside her panties. As this happened, she could feel Respondent “humping” her, grinding his groin area against her backside. Respondent then told A.H. to change positions on the table, moving her feet to the opposite end. Amazingly, she again complied with his instructions. Respondent began touching her upper thigh near her vagina and “did the same thing he had done before.” At that, A.H. quickly moved off the table and onto a chair, where she sat rigid and refused to move. Respondent seemed calm and relaxed, showing no sign of having acted inappropriately. A.H. did not tell anyone at Advantacare about the incident on that day because she could not fully grasp what had happened. As she began to understand the situation better, she was worried about reporting the incident because it would be her word against the doctor’s. A.H. did tell another doctor (Dr. Jacobson) about the incident when she saw him the next day for a regularly scheduled appointment. Dr. Jacobson had been an employee with Advantacare and presumably relayed A.H.’s allegations to the center. A.H. also reported the incident to the Board of Health and to law enforcement. She later contacted an attorney about filing a civil lawsuit against Respondent. A.H. did not return to Advantacare for treatment after this event because of the traumatic impact of the incident. Respondent has no independent recollection of A.H. as a patient, but said he did not touch her inappropriately. A.H.’s testimony was believable. She was a credible witness and articulated her testimony clearly. It is strange that A.H. would continue to obey Respondent even after he had touched her inappropriately, but she was obviously a compliant person, especially as it relates to physicians. Respondent’s defenses to allegations by patients Respondent claims he never saw a written chaperone policy at the Back Center but that he knew that it existed. According to him, there was insufficient staff available to make it possible to comply with the policy. Respondent’s testimony in this regard is rejected as being contrary to better, more persuasive evidence. Respondent said he was on several medications for “five or six years” prior to the final hearing, including Zoloft for mild depression, Lisinopril for hypertension, and Toprol for hypertension. One of the possible side effects of those medications is impotence or erectile dysfunction. However, during the time he was taking these drugs, Respondent fathered his two children. There is no competent evidence that Respondent suffered from impotence or erectile dysfunction during the time of any of the allegations about sexual misconduct. Respondent usually wore a lab coat when treating patients. The coat is long and had large pockets in the front, at about groin level. Respondent would keep empty syringes in his coat pocket. He suggests that female patients who said they felt his erect penis were actually feeling the syringes. His suggestion is not very plausible or persuasive. Respondent demonstrated at final hearing the normal physical stance he took when doing an injection of a patient in an examination room setting. He suggested that his body would be turned at a 45-degree angle from the patient rather than facing them directly, thus eliminating the possibility of full frontal contact with the patient. He also said that he generally stood four or five inches away from the patient, but might come into contact with the patient occasionally. Neither the statements nor his demonstration were persuasive. Respondent’s contention is that each and every one of the patients who alleged sexual misconduct was lying. He suggests that patient D.K. was overweight and thus would not have sexually aroused him. Also, he maintains that her description of the injections being performed while Respondent was rubbing against her would have necessarily resulted in horrible pain at best or a broken needle at worst. He claims that since patient M.B. was married to a policeman, she would have necessarily taken photographs of her numerous injections to preserve a record and she would have complained immediately. Her failure to do so, he suggests, impugns her testimony. Respondent contends that patient T.J.’s tardiness in reporting her allegations suggests the allegations were false. Respondent refutes A.H.’s allegations on the basis that there was a disagreement as to the physical layout of the medical office. Respondent contends there is no evidence that patient S.D. (his alleged lover) was his patient, even though there is a stipulation to that effect. Despite these speculative defenses, the evidence presented by the alleged victims is credible and accepted as fact. Failure to update practitioner profile A letter dated March 27, 2013, advising Respondent of his termination from participation in the Medicaid Program, was mailed to Respondent at two separate addresses: 2222 South Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e., the address of the Back Center, and 930 South Harbor City Boulevard, Melbourne, Florida 32901, the address for Osler (the company with whom the Back Center merged at some point in time). The letter to 2222 South Harbor City Boulevard was received on April 1, 2013, and an acknowledgement was signed by Chandra Carrender, a Back Center employee. Respondent’s employment with the Back Center had been terminated some 16 months previously, i.e., in August 2011. The letter mailed to 930 Harbor City Boulevard was returned as undeliverable. The termination letter provided Respondent notice of his right to contest the decision. He was given 21 days from receipt of the letter to file a Petition if he wanted to challenge the termination. Respondent did not file a challenge, so on or about June 21, 2013, a Termination Final Order was filed by the Agency for Health Care Administration (AHCA), setting forth Respondent’s termination from participation in the Florida Medicaid Program. The termination was issued pursuant to section 409.913, Florida Statutes. By law, Respondent was required to update his Florida practitioner profile within 15 days of receipt of the Termination Final Order. The Termination Final Order was mailed to Respondent, return receipt requested, at two different addresses: The 930 South Harbor City Boulevard address and the 2222 South Harbor City Boulevard address. Respondent denies having received the letter or TFO until just prior to the formal administrative hearing in this matter. Licensed physicians in the State of Florida are required to maintain a current address of record with the Agency for Health Care Administration (AHCA) and the Department of Health. Neither Respondent nor the Department provided evidence as to what Respondent’s official address of record was at the time the TFO and the letter were sent to Respondent at the two Harbor City Boulevard addresses. According to the deposition testimony of Michael West of the AHCA Medicaid Program Integrity office, the notices were sent to Respondent’s “address of record” per section 409.913(6), Florida Statutes. West’s testimony, however, did not specify what address that was. It might be logically presumed that one or both of the Harbor City Boulevard addresses were the “address of record,” because that is where the notices were mailed. However, there is no clear and convincing evidence as to Respondent’s official address of record at the time the Termination Final Order was mailed. The statutory section referred to by West states: Any notice required to be given to a provider under this section is presumed to be sufficient notice if sent to the address last shown on the provider enrollment file. It is the responsibility of the provider to furnish and keep the agency informed of the provider’s current address. United States Postal Service proof of mailing or certified or registered mailing of such notice to the provider at the address shown on the provider enrollment file constitutes sufficient proof of notice. Any notice required to be given to the agency by this section must be sent to the agency at an address designated by rule. Respondent did not update his Florida practitioner profile because he claims never to have received a copy of the TFO or the letter. Neither Respondent nor the Department provided direct evidence of Respondent’s “address last shown on the provider enrollment file” as of March 27, 2013.6/ Other factual considerations Respondent was terminated from employment at the Back Center in September 2011. The termination occurred as follows: T.J. reported the alleged October 29, 2010 incident in April 2011. Dr. Hynes was already aware of another incident (from D.K. in January 2011). Dr. Hynes met with Respondent to discuss his alleged behavior. Respondent denied the allegations, saying that people just seem to like him and take advantage of him. He said the patients were lying about the incidents. Dr. Hynes mandated at that time that Respondent have a chaperone in the examining room with every female patient. Rather than being allowed to exercise “medical judgment” like other doctors in the clinic, Respondent was ordered to always use a chaperone with all female patients. After patient C.J.’s allegations came to light in May 2011, Dr. Hynes told Respondent that three times was enough; something had to be done. The Back Center commenced preparation of a termination letter. The letter was to tell Respondent that, pursuant to his Employment Agreement, the Back Center was providing him the 180-day notice of termination of employment “without cause.” The purpose of that letter was to allow Respondent time to find a job and not have a blemish on his record. One of the bases for the termination letter was that Respondent had been referred to the Physicians Recovery Network (PRN) for counseling to address his behavior. Dr. Hynes presumed Respondent was obtaining that counseling. However, when C.J. reported the incident on May 4, 2011, Dr. Hynes found out that Respondent had not been going to PRN as he had previously indicated. At about the time the 180-day letter was being drafted, another incident (by patient M.B.) was reported to the Back Center. Upon hearing of that allegation, Dr. Hynes verbally fired Respondent, effective immediately, with cause. The 180-day letter was not actually delivered to Respondent until after the verbal termination, so the letter was moot when it arrived. Respondent did not tell his next employer, Advantacare, that he had been terminated from employment by the Back Center. He also did not advise Advantacare about the sexual allegations made by patients at the Back Center. In summary, Respondent engaged in activities of a sexual nature with patients at the Back Center in December 2010, January 2011, May 2011, and August 2011 (in addition to his relations with S.D. in 2008–2010). He engaged in sexually related touching of a patient at Advantacare in January 2013. His employment with the Back Center was terminated in September 2011; his employment with Advantacare was terminated in April 2013. Former patients of Respondent expressed dismay that he was being charged with the violations set forth in the Administrative Complaint. They found Respondent to be a caring and professional doctor. It is clear Respondent did not treat all his patients the same way he treated the victims identified herein. Some of his co-workers said they did not see Respondent engage in any of the alleged actions. They did not receive any complaints from other patients. Respondent obviously has a stellar reputation with some of his patients and co-workers. That status, however, does not excuse his behavior with the victims in the present cases. It is also alleged that Bobbi McDonald was a rumor-mongerer and a liar. She appeared credible at final hearing and there is no competent, substantial evidence to support the dispersions cast by others. It should be noted that several witnesses identified by Respondent were displeased with the manner in which they were questioned by Department personnel prior to the final hearing. The witnesses expressed extreme discomfort when Department employees (attorneys) suggested that Respondent was “an addict” or a sociopath. While a state agency is bound to pursue all claims against individuals which it is responsible for licensing and monitoring, it is improper to harangue or disparage such persons in order to sway potential witnesses’ testimony. Upon full review of the evidence in this case, the potential witnesses who complained about the Department’s aggressive nature did not provide substantive testimony on the issues of this case. Thus, any harm which may have resulted from the Department’s statements would not affect the final decision herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health revoking Respondent, Albert Esmailzadeh, M.D.’s license to practice medicine in the State of Florida. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case, and that payment of such costs be assessed against Respondent, Albert Esmailzadeh, M.D. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2014.
Findings Of Fact The Respondent, Peter Alagona, Jr., is licensed to practice medicine in the State of Florida. He is board-certified in internal medicine with a subspecialty in cardiology and has practiced cardiology since 1981. There is no evidence that the Respondent has been the subject of professional discipline except for this proceeding. In 1989, the Respondent became acquainted with V.P., who worked as a receptionist at a hospital where he had practice privileges. Their work relationship became friendly and, although the Respondent was married and had children, he and V.P. responded to each other's friendly manner by mutual flirtation. At first, their flirting was discrete but later became more open and romantic. The Respondent began to write V.P. notes and greeting cards and send her flowers. In approximately May, 1989, V.P. indicated her willingness to begin an intimate and sexual relationship. The Respondent did not hesitate to oblige her. There is no evidence that the Respondent used a doctor-patient relationship to induce V.P. to engage in sexual activity with him, as alleged. When the sexual relationship began, there was no doctor-patient relationship between them. During her tenure at work at the hospital, V.P. from time to time complained of a rapid heart beat, and one of the four cardiologists at the hospital would respond to her complaint. The Respondent was one of the several doctors who had occasion to respond. No treatment ever was required. V.P.'s heart beat would soon return to normal, and everyone would return to work. No true doctor-patient relationship was established, and neither the Respondent, the other doctors nor V.P. ever thought one had been established. The allegation that the Respondent essentially intentionally used drugs he prescribed for V.P. during the course of their affair to control her and prolong the sexual relationship with V.P. against her will hinges on the following reference in V.P.'s deposition transcript: Q. Just so that I'm clear, did Alagona ever tell you that if you did not have sex with him, he would not write prescriptions for you? A. Those aren't the words. He has made comments about, "Where are you going to get your prescriptions?" Q. When did he make those comments? A. I don't know. During the relationship, at the end of the relationship. Q. Give me some of the circumstances surrounding those comments. A. It was, I'm sure, during an argument or something. I don't know. In view of all the evidence, that allegation is rejected as not proven. It is factual that, in another poor judgment that flowed from the poor judgment in initiating and conducting the affair in the first place, the Respondent began to act as V.P.'s personal physician for limited purposes during the course of the affair. When she complained of migraine headaches, he prescribed pain medication such as Tylox, a Schedule II controlled substance containing oxycodone, and Inderal, a beta-blocker and a legend drug. For stress, he prescribed Valium, which contains diazepam, also a legend drug. Although the Respondent clearly was acting as the doctor in a doctor-patient relationship when he prescribed these drugs, he still did not view himself as acting in that role and did not keep a written record of the drugs or the course of treatment in connection with those prescriptions. The allegation that the Respondent failed to practice medicine in accordance with required standards of care by not ordering the patient to receive mental health counseling but instead inappropriately allowing the patient to remain on Tylox also depends in large part on the testimony of V.P. In view of all the evidence, V.P.'s testimony pertinent to this allegation is rejected. The evidence was that the Respondent repeatedly advised V.P. to seek counseling, albeit not for drug abuse. Until April, 1990, the Respondent was not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions were not excessive and would not, in and of themselves, have indicated to the Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox; nor did V.P. exhibit clear signs of drug abuse or addiction prior to April, 1990. However, V.P. apparently was obtaining Tylox and other legend drugs from other sources without the Respondent's knowledge. She was seeing other physicians for the purpose of obtaining prescriptions, and she also was forging the Respondent's and other doctors' names to prescriptions to obtain additional drugs illegally. (One of the doctors whose name she forged predeceased the date of the forged prescription.) In April, 1990, the Respondent was notified that V.P. had been hospitalized for a drug overdose. In response to the request for advice from the attending physician, the Respondent recommended a psychiatrist for counseling. However, V.P. did not cooperate. She attended only one counseling session and refused further counseling. After the overdose hospitalization, the Respondent did not prescribe any more Tylox. However, again without the Respondent's knowledge, V.P. continued to obtain Tylox and other drugs from her other sources. The Respondent's judgment continued to be distorted and poor as a result of his intense sexual and romantic relationship with V.P. He continued to urge V.P. to obtain counseling for several reasons but, again, not specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and she began putting pressure on the Respondent to divorce his wife and marry her. She began acting erratically, and her judgment also was poor. During a week- long visit to her family's home during the summer of 1990, she contacted an old boy friend, married him, changed her mind, and began annulment proceedings. By late 1990, V.P. started dating another doctor, and the pressure on both V.P. and the Respondent increased. The Respondent was unable to decide what to do, and the stress got ever greater as V.P. threatened to end the affair with the Respondent. While probably genuinely concerned for V.P.'s welfare, the Respondent probably also believed that, if V.P. got counseling, she would "see the light" and decide not to end their affair. Finally, the Respondent himself felt the need for counseling due to the stress of the affair, and he probably believed that she felt the same stress. Eventually, in early 1991, V.P. followed through on her threat and made it known to the Respondent that she was dropping him and choosing the other doctor. For some time, the Respondent was devastated and continued to try to persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute, holding out to the Respondent some hope that she would return to him if he divorced his wife. Finally, practically an emotional wreck and despairing of any other way to get over his affair with V.P., the Respondent checked himself into an out-of-town residential psychiatric program. He purposely did not tell V.P. where he was, but she found out and, on the day of his discharge, sent him flowers with a card saying that she would never let him go. Eventually, the affair ended, and V.P. married the other doctor soon after.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent not guilty under Counts I and II but guilty under Count III; (2) placing him on probation for two years; (3) requiring him to take appropriate continuing medical education, if available, dealing with the physician-patient relationship and the prudence of avoiding the dual sexual/physician-patient relationship; and (4) imposing on him an administrative fine in the amount of $2,500. DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to second sentence of 5., although he cannot now remember when he prescribed Tylox, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately approximately when and what he last prescribed so as not to expose V.P. to a health risk. 6. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to the last sentence, although he cannot now remember his prescriptions, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately when and what he last prescribed so as not to expose V.P. to a health risk. 7.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that patients need to be kept under "surveillance." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. As to last sentence, rejected as not proven that all "drugs," in all doses, "control a patient's emotional state and level of pain." Accepted that some can, in certain doses, and otherwise accepted and incorporated to the extent not subordinate or unnecessary. Accepted that it is not the only indication; subordinate to facts contrary to those found, and unnecessary. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent "did not follow through with V.P.'s medical problems." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, rejected as not proven; third, accepted that she said it, but subordinate to facts contrary to those found. First sentence, rejected as not proven; rest, accepted that she said it, but subordinate to facts contrary to those found. Rejected as not proven that he reviewed all of the prescription and hospital records. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. To the extent not conclusion of law, accepted and incorporated. First sentence, rejected as not proven; second, cumulative; third, in part cumulative and in part rejected as not proven (that he had no justification); fourth, accepted but subordinate to facts contrary to those found (he did some diagnostic testing); and last two rejected as not proven in that the evidence was that V.P. rejected the Respondent's repeated recommendations to her that she seek mental health counseling, but otherwise accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, accepted but not necessary; rest, rejected as not proven. Respondent's Proposed Findings of Fact. 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate. Conclusion of law. Accepted and incorporated. 26.-27. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. In large part, argument and conclusion of law; in part, accepted but largely subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that it is "clear . . . that V.P. feels that Alagona left her." (Much of their behavior is difficult to explain, such as why V.P. would act as if she did not want to let Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely subordinate and unnecessary. Accepted but largely subordinate and unnecessary. Last sentence of C), rejected as contrary to the greater weight of the evidence that it is "safe to infer that V.P. forged these prescriptions." (The evidence raises the question and possibility of forgery, especially in the absence of testimony on the subject from V.P. and Palay, but it is not "safe to infer.") Otherwise, accepted but largely subordinate and unnecessary. First four sentences, argument and subordinate. Rest, generally accepted and incorporated to the extent not subordinate or unnecessary. (However, while V.P. may have been "in the emotional driver's seat," it does not appear that she knew where she was going.) Accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. As to the third and fourth sentences, there was no evidence as to the nature of doctors' "orders." But, based on the evidence, the Respondent did not "order" counseling. He suggested or recommended it and offered to help her get it, and V.P. declined. If the Respondent had "ordered" counseling, the patient still may or may not have followed his "order." In either case, it would appear that the critical decision is what a physician does in the face of the patient's failure to comply. It would seem that the only thing a physician reasonably can do in this situation is stop prescribing and, if necessary, terminate the physician-patient relationship. As to the rest, accepted but subordinate to facts found, and unnecessary. 39.-42. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Regional Office VI-Legal Division 9325 Bay Plaza, Suite 210 Tampa, Florida 33619 L. D. Murrell, Esquire 319 Clematis Street, Suite 400 West Palm Beach, Florida 33401-4618 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue 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 Whether Respondent is guilty of violating Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Jeffrey L. Katzell, M.D. (Dr. Katzell), is and has been at all material times to this proceeding a physician, licensed in the State of Florida by the Petitioner, Agency for Health Care Administration (AHCA). Dr. Katzell was issued license number ME 0050379. Dr. Katzell is a board certified orthopedic surgeon. He entered the private practice of orthopedic surgery in Palm Beach County in 1987. Prior to the allegations which are the subject of this proceeding, Dr. Katzell has never been the subject of a medical malpractice complaint or any form of disciplinary action by the Board of Medicine in any state. PATIENT T.B. T.B. is the female patient referred to in Counts 1-3 of DOAH Case No. 93-7122, DPR Case No. 92-3917. From December 12, 1991, through February 6, 1992, Dr. Katzell treated T.B. who was at that time 24 years old. Her chief complaints were of pain in her back, neck, wrist and chest as a result of trying to catch herself from falling while walking down some stairs. She complained of chest pain that felt like a band around her chest. She had pain when breathing. On the December 12, 1991, visit, a female medical assistant asked T.B. to disrobe and put on an examining gown which opened down the back. T.B. wore her panties under the gown and no bra. Dr. Katzell examined T.B. in the presence of a female medical assistant. As part of his examination, he palpated T.B.'s sternum and examined her ribs by placing his left hand through the armhole of the examining gown and his right hand on her back. Dr. Katzell moved the fingers of his left hand in different locations on her chest and asked T.B. if it hurt in those areas. During the examination, the palm of Dr. Katzell's hand touched the nipple of T.B.'s breast. It is possible for a physician to examine a female patient's sternum and ribs without touching her nipples but it is also possible that a physician could accidently touch the nipple of the breast while performing such an examination. It was appropriate for Dr. Katzell to examine T.B.'s sternum and ribs, given the nature of her complaints. It was not below the standard of care nor does it constitute sexual activity or sexual misconduct for an orthopedic surgeon to have physical contact with the breast in the manner described by T.B. during the course of performing an examination of the chest. On January 23, 1992, T.B. returned to Dr. Katzell for a follow-up examination. She was complaining of pain in the area of the left sciatic joint which is located in the buttock. For the examination she was wearing a T-Shirt, panties, and a bra underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her a cortisone shot in her buttock. She removed her panties. Dr. Katzell gave her an injection of cortisone in her buttock while she lay face down on the examining table. He left the room for a short period of time. When he returned, he rubbed the medication in to diffuse the medicine. Then he asked her to turn over and he began to manipulate her legs to see if the shot had worked. The examination includes flexing and extending the legs, as well as abduction (spread eagle) and adduction (legs crossed). T.B. did not have any panties on while he was putting her legs in different positions and her genital area was exposed. It was appropriate for Dr. Katzell to check T.B.'s range of motion, but it was inappropriate for him to perform the examination while the lower half of her body, including her genitalia were exposed. To have performed the range of motion test while the patient's genitalia was exposed was below the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. On February 6, 1992, T.B. returned for a follow up visit, continuing to complain of low back pain related to the sciatic joint. Again T.B. was asked to disrobe and put on an examining gown. She wore two tank tops, a bra, and panties underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her another cortisone shot. She removed her panties. Another man was present when Dr. Katzell gave T.B. the injection. The man and Dr. Katzell left the examining room after the injection was administered. Dr. Katzell returned a short time later and told T.B. that he probably needed to manipulate the shot into the buttock. He opened the back of her gown and started to rub her buttock with both hands. Cortisone is a non-absorbable medication. The standard of care for orthopedic surgery recognizes that it is helpful and appropriate to massage the area of the injection to diffuse the medication. After Dr. Katzell massaged T.B.'s buttocks, he took his right hand and pulled her leg open. Dr. Katzell then made a sweeping motion with his hand from her vagina to her rectum. T.B. jumped to the side and pulled the gown closed. She asked him why he was giving her a shot in the buttock when it was her hip that hurt. Dr. Katzell told her that if she did not like it that she could come back for more. T.B. started to cry. The touching of T.B.'s genitalia from her vagina to her rectum was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching was sexual misconduct in that the touching was a violation of the patient-physician relationship through which Dr. Katzell intentionally touched the vagina of T.B. and such touching was outside the scope of generally accepted treatment and examination of the patient. T.B. left Dr. Katzell's office and went to her workers' compensation attorney complaining of her treatment from the doctor. T.B. told her husband what had happened and they called the police. As a result of the above-described events T.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28364-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.B. and the Court adjudicated Dr. Katzell guilty. T.B. has filed a civil action for monetary damages against Dr. Katzell. PATIENT A.F. A.F. is the female patient referred to in Counts 4-6 of the Administrative Complaint in DOAH Case No. 93-7122, DPR Case No. 92-3917. A.F. was involved in a head on automobile accident on August 30, 1991. At that time she was 30 years old. After the accident she was treated by Dr. Michael Nathanson, a chiropractor. He referred her to Dr. Katzell for a complete orthopedic examination. Dr. Katzell first saw A.F. on October 9, 1991. She was complaining of pain in her sternum, sciatic pain, neck pain, and pain in the middle and low portion of her back. A.F. told Dr. Katzell that she had severe pain in sternum but that she did not have any bruises on her breasts. Her chiropractor had advised her that she had cracked two ribs. During Dr. Katzell's first examination of A.F. no other persons were present in the room. A.F. was wearing an examining gown, panties, and a bra. While A.F. was standing, Dr. Katzell pulled down her examining gown and removed her bra straps from her shoulder, exposing her sternum and breasts. She tried to pull the gown back up but he pushed it back down. Given the nature of A.F.'s complaints relating to her sternum and ribs, it was appropriate for Dr. Katzell to examine the sternum, to palpate the costochondral junction where the ribs meet the sternum, and to palpate the ribs. Dr. Katzell palpated the ribs and the costochondral junction during his examination. While he was examining her, his fingers did come in contact with A.F.'s breasts. The standard of care is not violated when a physician's hand comes in contact with the breast during an examination of the anterior chest such as was performed by Dr. Katzell. By touching A.F.'s breasts, Dr. Katzell did not engage in sexual activity. After her visit with Dr. Katzell, A.F. told Dr. Nathanson that she did not think that Dr. Katzell's examination had been appropriate. On October 29, 1991, A.F. returned to Dr. Katzell for a follow-up visit. She was complaining of hip pain and sciatic pain, with a pain in the crease of her leg where the elastic of her panties would be. She put on the examining robe and left on her panties and bra. No attendant was present during the examination. A.F. was standing while Dr. Katzell was examining her. He put his thumbs underneath her panties and palpated the inguinal crease (where the elastic of the panties would be located). As he was examining her, he put his right thumb in the crease in the vaginal area across her clitoris and went down underneath in the vaginal area. She told him that it did not hurt there and he went back up across the same area. Dr. Katzell's touching of A.F.'s clitoris and her vaginal area was unjustified and inappropriate. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. The touching was also sexual misconduct. On November 11, 1991, A.F. returned to see Dr. Katzell for the results of her MRI test. Dr. Katzell asked her twice to put on the examining robe but she refused to do so. A.F. called Petitioner and filed a complaint against Dr. Katzell. Later A.F. instituted a civil action against Dr. Katzell. Additionally, as a result of the above-described events A.F. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number 92-28366- MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of A.F. and the Court adjudicated the Respondent guilty. PATIENT BB Patient B.B. is the female patient referred to in Counts 7-9 of the Administrative Complaint in DOAH Case No. 93-7122 and DPR Case No. 92-3917. B.B. was a nurse in a hospital where Dr. Katzell performed surgery. In the summer of 1990, she began experiencing pain in her left hip, radiating to her left knee and foot and causing her to limp. Dr. Katzell noticed her limp and told her that a cortisone shot could help. She agreed to the injection. They went to the cast room in the emergency room of the hospital. Dr. Katzell asked her to put on an examining gown while he stepped out of the room. She complied. Dr. Katzell gave B.B. an injection and told her that it was not necessary for him to see her in his office. He did not charge B.B. for the treatment. It is not unusual for physicians to perform courtesy examinations for the nurses. B.B. experienced some minimal relief, but the pain returned in a couple of weeks. Dr. Katzell suggested another injection. They went to the cast room where the first examination had taken place. On the way to the cast room, B.B. told Dr. Katzell that she was also experiencing pain in her tailbone that resulted from an accident she had while giving childbirth years before. He told her that he would need to do a vaginal examination to determine where to place the shot in her tailbone. He performed a vaginal examination by inserting his fingers into her vagina. He did not perform a rectal examination. No one else was present during Dr. Katzell's examination of B.B. Vaginal examinations are not used in the diagnosis or treatment of back pain, coccydynia (pain in the tailbone) or to locate a favorable injection site for the treatment of these conditions. The giving of the vaginal examination fell below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The vaginal examination also constituted sexual misconduct. B.B. wrote a letter to Petitioner concerning Dr. Katzell's examination but she was not specific about the nature of the complaint. She was later contacted by one of Petitioner's investigators. As a result of the above-described events B.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number, 92-12233-CF. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of B.B. and the Court adjudicated Dr. Katzell guilty. PATIENT D.B. Patient D.B. is the female patient referred to in Counts 1-3 of the Administrative Complaint in DOAH Case No. 93-7123 and DPR Case No. 92-14422. D.B. first saw Dr. Katzell on May 16, 1991. She was complaining of instability with her left knee. At the time she was 24 years old. D.B. had had a patella tendon anterior cruciate ligament reconstruction in 1986. She saw Dr. Katzell again on June 13, 1991 and July 9, 1991. Dr. Katzell recommended arthroscopic anterior cruciate ligament reconstruction on her left knee because of a rupture of the anterior cruciate ligament. On July 15, 1991, D.B. was admitted to J.F.K. Medical Center, where Dr. Katzell performed surgery on her left knee. After the surgery, D.B.'s left leg was bandaged from the groin area to half way down her calf. On one of his hospital post-operative visits, Dr. Katzell came to check D.B.'s dressing. D.B. was wearing a hospital gown and no underpants, her left leg was in the air in a continuous motion machine, and she was on a bedpan when Dr. Katzell came into her room. While Dr. Katzell was checking her dressings, he rubbed his hand down her crotch. There was no medical necessity for rubbing across the crotch area of D.B. when Dr. Katzell changed her dressing while she was in the hospital. D.B., who was accompanied by her mother, saw Dr. Katzell in his office on July 26, 1991. He removed the staples. D.B. next saw Dr. Katzell on August 16, 1991. She put on an examination gown and kept on her T-shirt, bra, and panties underneath the gown. Dr. Katzell performed a range of motion test, which required D.B. to lie on the examining table, bend the leg at the knee while the leg was raised in the air, and gradually lower the leg. During the examination, Dr. Katzell placed his hand between her legs and slid it down the middle of the vaginal area from top to bottom. Dr. Katzell next saw D.B. in his office on September 13, 1991. D.B. was dressed in an examination gown with a shirt, panties and bra underneath the gown. Dr. Katzell performed another range of motion test and again touched her in her vaginal area, down the middle of her crotch from top to bottom. On October 11, 18, November 19, and December 19, 1991, D.B. returned for follow-up visits. On each visit, D.B. removed her shorts and put on an examination gown. During each visit Dr. Katzell measured her leg near the groin area for atrophy as she stood up with her back to him as he was sitting on a stool. While he was measuring during each visit, he briefly rubbed his hand between her legs in her crotch. On January 17, 1992, D.B. went to see Dr. Katzell at his office. She was wearing bike shorts and a sweater. She had intentionally worn bike shorts because she felt that the doctor could measure over the shorts and there would be no necessity for removing her shorts. The bike shorts had a built-in pantie so D.B. did not wear any additional underpants. Dr. Katzell asked her to remove the bike shorts and the sweater and put on a gown, explaining that he could not measure over the spandex of the bike shorts. It would not have been medically appropriate to measure the leg over the spandex because the bike shorts compress the muscles of the upper leg. D.B. removed her shorts and sweater and put on the gown, which left her wearing only the gown and a bra. Dr. Katzell performed a range of motion test and measured her leg for atrophy. When he was measuring her leg, he touched her in her vaginal area as he had done previously. There was no medical necessity that required Dr. Katzell to touch D.B. in her vaginal area while he was performing range of motion tests and measuring her leg for atrophy. The touching of D.B. in her crotch while she was in the hospital and during her subsequent office visits was inappropriate and fell below the level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constituted sexual misconduct. As a result of the above-described events, D.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of D.B. and the Court adjudicated Dr. Katzell guilty. D.B. has made a civil claim against Dr. Katzell related to the above- described incidents. PATIENT T.C. Patient T.C. is the female patient referred to in Counts 4-6 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. Dr. Katzell treated T.C. for chronic knee derangement from December 4, 1987 to November 18, 1991. During that time, he operated on her knee two times for internal derangement of the knee. On March 12, 1991, T.C. went to Dr. Katzell complaining of pain and swelling in her right knee. She also had right sided low back pain radiating into her right hip. Dr. Katzell examined her right hip and palpated the area in the inguinal crease. He moved her underpants to one side, exposing her vagina while he was palpating the inguinal crease. Dr. Katzell did not touch the vagina during the examination. Depending on the cut of T.C.'s underwear it may have been necessary to move her underwear to one side in order to palpate the inguinal crease. Dr. Katzell's actions on March 12, 1991, did not constitute sexual misconduct nor was it below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On November 18, 1991, T.C. went to Dr. Katzell's office for a follow- up visit, complaining of continued pain in her right knee. Dr. Katzell asked her to disrobe and put on an examination gown. She complied, leaving on her underwear. During the examination of her knee, Dr. Katzell began to rub T.C. above her knee and on the inside of her right thigh. He touched her vaginal area over her underwear with his fingers. She moved forward when he touched her and he removed his hand. There was no medical necessity to touch the vaginal area of a patient during the examination of a knee. The touching of T.C.'s genitalia during the knee examination was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constitutes sexual misconduct. Following the knee examination of November 18, 1991, T.C. immediately left Dr. Katzell's office and never returned. As a result of the above-described incident, T.C. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28365-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.C. and the Court adjudicated the Respondent guilty. T.C. has filed a lawsuit against Dr. Katzell seeking monetary damages. PATIENT S.M. Patient S.M. is the female patient referred to in Counts 7-9 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. On July 22, 1991, S.M. went to see Dr. Katzell for an independent medical evaluation relating to a slip and fall at her workplace. S.M. was complaining of upper and lower back pain, bilateral hip pain, mild knee pain and some right shoulder discomfort. S.M. was given an examination gown to wear. She put on the gown, leaving on her slip, bra and g-string panties. Dr. Katzell began to examine her and told her she would have to remove her slip. He left the room while she did so. There was no attendant in the room during the examination. She lay on the examining table and he stretched her legs at 90 degree angles. He had his hand underneath the gown, between her legs and on top of her vagina. He would rub the crease area between S.M.'s thigh and pubic area and move his hand across the vaginal area as he went from one to side to the other. There was no medical purpose for Dr. Katzell to touch S.M.'s vaginal area during his examination. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. The touching also constituted sexual misconduct. As a result of the above-described incident, S.M. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of S.M. and the Court adjudicated him guilty. S.M. has filed a civil action against Dr. Katzell for monetary damages. MITIGATION In 1992, after the complaints surfaced concerning the above-referenced patients, Dr. Katzell voluntarily stopped his practice and sought help through the Physicians Recovery Network (PRN). He entered into a five-year supervisory contract with PRN and was participating in the contract at the date of the hearing. He agrees to remain under contract with PRN as long as necessary to demonstrate that he is safely practicing medicine. Dr. Katzell was in good standing with his agreement with PRN and had no reported problems as of the date of the final hearing. PRN referred Dr. Katzell to the Behavior Medicine Institute in Atlanta, Georgia, where he underwent an out-patient cognitive behavior type of treatment for sexual problems. The treatment program is headed by Dr. Gene Abel. The recidivism rate for physicians treated in Dr. Abel's program is 0 percent. As a result of the charges made by the six patients, Dr. Katzell has made changes in his orthopedic practice. These changes in methods include always examining a female patient in the presence of a chaperon or attendant and explaining to the patient the need for any examinations which could be perceived as being in close proximity to a private area. When patients are to receive a cortisone injection, his female office staff will drape the area outside the presence of Dr. Katzell and he will return simply to administer the injection in the presence of his attendant. The medication will be massaged into place by a female attendant and not by Dr. Katzell. There have been no complaints in the three years since Dr. Katzell has made these changes in his orthopedic practice. Over twenty witnesses testified at the final hearing concerning Dr. Katzell's practice of medicine since the incidents involving the six female patients. The witnesses found that in their dealings with Dr. Katzell they found him to be a capable, professional and caring physician. Dr. Katzell was interviewed, tested, and evaluated by two forensic psychologists, Theodore Blau, Ph.D. and Florence Kaslow, Ph.D. Based on their evaluations, it is their opinion that Dr. Katzell can safely practice medicine in the future and that Dr. Katzell's fear of loss of the ability to practice medicine in the future is so overwhelming that he will not be expected to exceed the boundaries of acceptable behavior that the law or ethics require of him as a physician. The evidence did not establish that the six patients suffered any physical or severe permanent psychological harm. On the advice of counsel, Dr. Katzell entered pleas of nolo contendere to battery on the six patients. When he did so it was his understanding that would not have any significant impact with regard with his license to practice medicine. In order to get the State Attorney to agree to a plea agreement, Dr. Katzell opted to forego the taking of any depositions in the criminal case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jeffrey L. Katzell, M.D., violated Section 458.331(1)(c), Florida Statutes, in Counts 1, 2, 3, 4, 5, and 6 of the Administrative Complaint in DOAH Case No. 93-7124, dismissing Count 7 of the Administrative Complaint in DOAH Case No. 93-7124, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(t), Florida Statutes in Counts 3, 6, and 9 in the Administrative Complaint filed in DOAH Case No. 93- 7122 and in the Administrative Complaint filed in DOAH Case No. 93-7123, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7123, dismissing Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7123 as not providing a separate ground for disciplinary action given the findings that Dr. Katzell violated Section 458.329 and thus, Section 458.331(1)(x), Florida Statutes. It is recommended that the following penalty be imposed: Suspension of the license of Dr. Katzell for six months; Imposition of an administrative fine of $2,000 for each violation for a total of $36,000; Five years probation following the suspension of the license; All examinations of female patients by Dr. Katzell be made in the presence of a female chaperon, and this shall be a permanent requirement of his medical license; and Dr. Katzell is to remain under a supervisory contract with the Physician Recovery Network until the conclusion of his probationary period. DONE AND ENTERED this 19th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 93-7122, 93-7123, and 93-7124 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraph 10 (there were two paragraphs numbered 10): Accepted in substance. Paragraphs 11-24: Accepted in substance. Paragraph 25: Rejected as not supported by clear and convincing evidence. Paragraphs 26-27: Rejected as unnecessary because incidents related to the December 30 visit were not alleged in the Administrative Complaint. Paragraph 28: Accepted in substance except that the undergarment that Dr. Katzell asked her to remove was her panties. Paragraphs 29-37: Accepted in substance. Paragraph 38: Accepted in substance except as to the date on which he began treatment for chronic knee derangement. Paragraphs 39-54: Accepted in substance. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as not supported by clear and convincing evidence. Paragraphs 57-65: Accepted in substance. Paragraph 66: Accepted in substance except that in relation to the criminal information pertaining to A.F., Dr. Katzell entered a plea of nolo contendere to battery on the person of A.F. not T.B. Paragraphs 67-70: Accepted in substance. Paragraph 71: Rejected because the allegations were not part of the Administrative Complaint Paragraphs 72-77: Accepted in substance. Paragraphs 78: Rejected because the allegation was not part of the Administrative Complaint. Paragraphs 79-81: Accepted in substance. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 2: The first sentence and the first half of the second sentence are rejected as unnecessary. The remainder is accepted in substance. Paragraph 3: Accepted in substance. Paragraph 4: Rejected as unnecessary detail. Paragraphs 5-7: Rejected as unnecessary detail. Paragraphs 8-11: Rejected as subordinate to the findings that were actually made. Paragraphs 12-15: Rejected as unnecessary detail. Paragraph 16: Rejected to the extent that it implies that all of Dr. Katzell's actions were in compliance with the orthopedic standard of care. Accepted in substance to the extent that the medical records alone do not show the violations charged in the administrative complaints. Paragraphs 17-18: Accepted in substance. Paragraph 19: The first sentence is rejected to the extent that the patient indicated that she had fallen. She indicated that she caught herself from falling as she was walking down the stairs. The remainder is accepted in substance. Paragraphs 20-24: Accepted in substance. Paragraphs 25-26: Rejected as unnecessary. Paragraphs 27-30: Accepted in substance. Paragraphs 31-37: Rejected as unnecessary because the actions of Dr. Katzell during the December 30 visit were not alleged in the Administrative Complaint. Paragraph 38-39: Accepted in substance. Paragraph 40: Rejected as unnecessary detail. Paragraphs 41-42: Accepted in substance. Paragraphs 43-44: Rejected as unnecessary detail. Paragraph 45: The first two sentences are rejected as unnecessary detail. The last sentence is accepted in substance. Paragraphs 46-48: Accepted in substance. Paragraph 49: The first sentence is rejected as constituting argument. The second sentence is rejected as unnecessary detail. Paragraph 50: The portion of the sentence dealing with sexual activity is accepted in substance as it relates to the January 23 visit but the portion dealing with practice below the standard of care is rejected as not supported by the evidence. Paragraphs 51-53: Accepted in substance. Paragraph 54: Rejected as unnecessary detail. Paragraph 55: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 56-58: Accepted in substance. Paragraph 59: Rejected as constituting argument. Paragraph 60: Rejected as irrelevant. The inappropriate touching of the vagina is sexual activity and it is irrelevant whether they talked about sexual topics or whether either person was sexually aroused by it. Paragraph 61: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 62: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 63: The first sentence is rejected as not supported by the evidence. Having judged the credibility of the witnesses, the second sentence is rejected. Paragraphs 64-71: Accepted in substance. Paragraph 72: Rejected as unnecessary. Paragraph 73: The first sentence is accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 74-75: Rejected as subordinate to the facts found. Paragraphs 76-78: Accepted in substance. Paragraph 79: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 80-85: Rejected as unnecessary because the Administrative Complaint does not contain allegations related to this portion of the October 9 visit. Paragraphs 86-87: Accepted in substance. Paragraph 88: Rejected as unnecessary detail. Paragraph 89: Accepted in substance. Paragraph 90: Rejected as unnecessary detail. Paragraph 91: The first half of the sentence is rejected as unnecessary detail. The last half of the sentence is accepted in substance. Paragraph 92: Rejected to the extent that it implies that Dr. Katzell did not touch A.F.'s clitoris and her vaginal area. Paragraphs 93-95: Rejected as irrelevant because it was the touching of the clitoris and the vaginal area which was at issue not the palpating of inguinal crease or the touching of the pubic bone. Paragraph 96: The first sentence is accepted in substance. The second sentence is rejected as irrelevant since the complained touching was not in close proximity but was in the vagina. Paragraph 97: Rejected as irrelevant. Paragraph 98: Rejected as constituting argument. Paragraph 99: Accepted in substance. Paragraph 100: Having judged the credibility of the witnesses, this paragraph is rejected. Paragraph 101: Rejected as not supported by the evidence. If the clitoris is covered by the labia, it is uncovered when a person sticks his thumb in the vaginal crease and runs his thumb down the crease and back up again. Paragraph 102: The first sentence is rejected as not supported by the evidence. The last sentence is rejected as irrelevant. Paragraphs 103: Rejected as irrelevant. Paragraph 104: Accepted in substance. Paragraphs 105-107: Rejected as irrelevant. Paragraph 108: Rejected as constituting argument. Paragraph 109: Accepted in substance. Paragraph 110: Rejected as not supported by the evidence. Paragraphs 111-115: Accepted in substance. Paragraphs 116-122: Rejected as unnecessary because the Administrative Complaint does not contain allegations concerning the touching of B.B.'s breasts. Paragraphs 123-127: Accepted in substance. Paragraphs 128: Rejected as unnecessary detail. Paragraphs 129-131: Rejected as irrelevant since the finding is that a vaginal examination was performed. Paragraph 132: Rejected as constituting argument and subordinate to the finding that Dr. Katzell did perform a vaginal examination. Paragraph 133: Rejected as unnecessary detail. Paragraph 134: Rejected as subordinate to the finding that he did perform a vaginal examination. Paragraph 135: Rejected as irrelevant as to whether she felt that he was engaging in sexual activity. Paragraph 136: Rejected as not supported by the greater weight of the evidence that the pressure that B.B. felt was consistent with a rectal examination. Paragraphs 137-138: Rejected as subordinate to the facts actually found. Dr. Koulisis's statement corroborated B.B.'s testimony that a vaginal examination was performed. Paragraph 139: Rejecting as constituting argument. Paragraph 140: Rejected as irrelevant. Paragraph 141: Rejected as constituting argument. Paragraph 142: Accepted in substance. Paragraphs 143-144: Rejected as irrelevant. There was no showing that Dr. Katzell was prejudiced by the loss of the letter. Paragraph 145: Accepted in substance. Paragraph 146: The first and third sentences are accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 147: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 148: Rejected as unnecessary detail. Paragraph 149: Accepted in substance. Paragraph 150: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 151-153: Rejected as constituting argument and subordinate to the facts actually found. Dr. Katzell did see D.B. in the hospital on at least one occasion and he did touch her in her vaginal area during that examination. Paragraphs 154-155: Accepted in substance. Paragraphs 156-157: Rejected as irrelevant. The inappropriate behavior was not touching near the crotch area but the touching of the crotch. Paragraphs 158-159: Rejected as not supported by the evidence. Paragraph 160: Rejected as irrelevant. Paragraph 161: Rejected as subordinate to the finding that there was a touching. Paragraphs 162-164: Accepted in substance. Paragraphs 165-166: Rejected as irrelevant. Paragraph 167: Rejected as it refers to the last visit, otherwise accepted in substance. Paragraphs 168-172: Rejected as subordinate to the finding that there was a touching in the crotch area. Paragraph 173-175: Accepted in substance. Paragraph 176: Accepted. Paragraphs 177-179: Rejected as subordinate to the facts actually found that there was a touching in the vaginal area. Paragraph 180: Accepted in substance. Paragraphs 181-182: Rejected as subordinate to the finding that there was a touching in the vaginal area. Paragraph 183: Rejected as unnecessary. Paragraph 184: The first sentence is rejected as unnecessary. The sentence is rejected as constituting argument and as not supported by the evidence. Both women indicated that D.B. did not go into specifics and the sister-in-law testified that D.B. did not like the way that he had examined her and touched her legs. Paragraph 185: Rejected as not supported by the evidence. There was testimony that D.B. advised her husband. Paragraph 186: Rejected as irrelevant. Paragraphs 187-188: Rejected as subordinate to the finding that there were inappropriate touchings of the vagina. Paragraph 189: Accepted in substance. Paragraph 190: Having judged the credibility of the witnesses, it is rejected. Paragraph 191: Rejected as not supported by the evidence. Paragraphs 192-195: Accepted in substance. Paragraphs 196-199: Rejected as unnecessary detail. Paragraphs 200-203: Accepted in substance. Paragraphs 204-205: Rejected as irrelevant. Paragraphs 206: Accepted in substance. Paragraph 207: Accepted that Dr. Katzell moved the underwear, but rejected as irrelevant as to whether he remembers exposing the vagina. Paragraph 208: Accepted in substance. Paragraph 209: Rejected as unnecessary detail. Paragraph 210: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 211-212: Rejected as unnecessary detail. Paragraphs 213: Rejected as subordinate to the finding that he touched the vagina. Paragraph 214-216: Rejected as subordinate to the fact that he touched the vagina. Paragraph 217: Accepted in substance. Paragraph 218: Rejected as not supported by the evidence. Paragraphs 219-220: Accepted in substance. Paragraphs 221-222: Rejected as unnecessary detail. Paragraph 223: Accepted in substance. Paragraph 224: The first sentence is rejected as unnecessary detail. The last sentence is accepted in substance. Paragraph 225: Accepted in substance. Paragraph 226-228: Rejected as unnecessary detail. Paragraph 229-231: Accepted in substance. Paragraphs 232: Rejected as irrelevant. Paragraph 233: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 234: The first sentence is accepted in substance. The remainder is rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraphs 235-236: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 237: Accepted in substance. Paragraph 238: Rejected as irrelevant. Paragraph 239: Rejected to the extent that it implies that Dr. Katzell did not touch the vaginal area, but otherwise accepted in substance. Paragraph 240: Accepted in substance to the extent that it refers to the actions described in Paragraph 239 of Respondent's Findings of Fact. Paragraph 241: Rejected as subordinate to the finding that Dr. Katzell touched S.M.'s vaginal area. Paragraphs 242-245: Rejected as irrelevant. Paragraph 246: Rejected as constituting argument. Paragraphs 247: Accepted in substance. Paragraph 248: Rejected as constituting argument. Paragraph 249: Rejected as not supported by the evidence. Paragraph 250: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 251: Accepted in substance. Paragraph 252-257: Rejected as unnecessary detail. Paragraph 258-261: Rejected to the extent it implies that the tests and evaluations indicate that Dr. Katzell did not commit the violations alleged in the Administrative Complaint. Paragraph 262: The first two sentences are rejected as irrelevant. The third sentence is rejected as not supported by evidence that Dr. Katzell did not engage in sexual activity with the patients. Paragraph 263: The first two sentences are rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. The last sentence is accepted in substance. Paragraph 264: Rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. Paragraph 265: Accepted in substance. Paragraph 266: Rejected as not supported by the evidence. Paragraph 267: Rejected as constituting argument. Paragraph 268: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 269: Accepted in substance. Paragraphs 270-271: Rejected as irrelevant since there was sufficient evidence to establish that Dr. Katzell did commit a battery on each of the six patients. In the case of D.B., he did commit a battery on her on July 17, 1991 and out of the eleven counts of battery on D.B. for which Dr. Katzell was charged there was sufficient evidence to support a charge of battery on eight of the counts. Paragraph 272-273: Rejected as irrelevant. Paragraph 274-277: Accepted in substance. Paragraph 278: Rejected as unnecessary. Paragraph 279: Accepted in substance. Paragraphs 280-282: Rejected as subordinate to the findings that committed the violations as set forth in the Findings of Fact of this Recommended Order. Paragraphs 283-287: Accepted in substance. Paragraph 288: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 289: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The third sentence is rejected as irrelevant. Paragraph 290: Accepted to the extent that the evidence presented established that it is not likely that Dr. Katzell is not likely to commit in the future the type of actions alleged in the Administrative Complaint. COPIES FURNISHED: Albert Peacock, Esquire Hugh R. Brown, Qualified Representative Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Assistant Director Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
