Findings Of Fact At all times relevant hereto, Lawrence A. Decker was licensed as an osteopathic physician in Florida. On November 18, 1980, D. K. was admitted to Sun Coast Osteopathic Hospital, with an admitting diagnosis of acute generalized anxiety disorder, under the care of Dr. Kaye, a psychiatrist. On her initial examination, she complained of severe menstrual cramping. She was referred to an internist and a gynecologist (Respondent). Exhibit 1). At her gynecology examination, D. K. gave a history of pain in the right lower quadrant of her abdomen shortly following a tubal ligation some six years earlier. She had visited three gynecologists in the intervening years and had been treated with medication (Estrace, Valium and Progesterone) by one of these gynecologists without significant improvement in her symptoms; one suggested she had a prolapse, a hysterectomy was indicated and Tranxene was prescribed; and a third physician stated she had a sore muscle on her right ovary, but no therapy was suggested. Respondent suggested a hysterectomy might relieve the menstrual cramps, but was unlikely to improve her anxiety disorder unless that was brought on by the dysmenorrhea. D. K. talked to her husband and then told Respondent she would like to have the hysterectomy during her current admission rather than be discharged and return at a later date. After concluding D. K. was capable of consenting to the surgery, the hysterectomy was scheduled for November 24, 1980. In Dr. Joyes' hospital notes (Exhibit 1), an entry dated November 21, 1980 states in part: "Anxiety re surgery. Feels her problems are due to physical causes." November 22, 1980 entry: "States relief decision made to have surgery (hysterectomy) scheduled for Monday." November 23, 1980 entry: "Patient expresses anxiety re A.m. surgery. Able to understand others and is supportive to their needs. Lacks emotional insight into her own." Nurses notes in Exhibit 1 (page 61) for November 22, 1980 reads: "Attended group session . . . Participated very well. Appears more relaxed and comfortable this evening." Nurses notes for November 23, 1980 read: "Good participation during group. Insight into other's problems good. Nothing specific to solving own anxieties offered except surgery." At no time did Dr. Joye conclude that D. K. was unable to fully and knowingly consent to the surgery that was performed by Respondent on November 24, 1980. Petitioner's witness, Dr. Eli Rose, opined that D. K. was unable to give informed consent to the surgery based upon her admitting diagnosis of acute anxiety reaction and Dr. Joye's comment in Exhibit 1 (finding 5 above) "that [she] lacks emotional insight into her own." He also opined that from the symptoms of D. K. as contained in the patient records there was insufficient medical justification for the hysterectomy performed. Dr. Rose was also perturbed that the operation was scheduled so quickly, disregarding (or not knowing) that D. K. had requested the surgery be performed during that hospitalization. Before becoming aware that a second surgeon assisted Respondent in performing this hysterectomy, Dr. Rose opined that the length of the operation, forty-five minutes, was too short a time for this procedure to be safely and adequately performed. After learning that another surgeon assisted Respondent, Dr. Rose backed away from this position. After this case was referred to Dr. Rose for consultation, he became aware that he was D. K.'s physician two years earlier who had treated D. K.'s symptoms with medication. In addition to his own testimony, Respondent presented two gynecologists, one board certified and the other board eligible. Dr. Broadnax reviewed the patient records of D. K. and the depositions of other witnesses. He opined that in the treatment of D. K., Respondent exercised the level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. The parties stipulated if Dr. Rothman, a board certified gynecologist, was called he would testify that in the treatment of D. K., Respondent exercised the care, skill and treatment which is recognized by a reasonably prudent osteopathic physician as acceptable under similar conditions and circumstances. With respect to the charge involving inadequate record keeping, no creditable evidence was presented to support this charge. Petitioner's only witness acknowledged that he was unaware there is a standard of care for the keeping of medical office records.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health, Division of Medical Quality Assurance, Board of Osteopathic Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of osteopathic medicine pursuant to Sections 20.43 and Chapters 455 and 459, Florida Statutes. Respondent, John E. Gdowik, is, and was at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0002696. Moreover, during all such periods, Respondent was registered with the Department, pursuant to Section 465.0276, Florida Statutes, as a dispensing physician and thereby accorded the privilege of dispensing medicinal drugs from his office for compensation. At the times pertinent to this case, Respondent maintained his office at what was commonly known as 6136 Johnson Street, Hollywood, Florida; however, he had removed the street numbers from the building and chose to refer to his office location as the southeast corner of 62nd Avenue and Johnson Street. Respondent also refused mail delivery at his office, and directed, consistent with a sign posted on the premises discussed infra, that all mail be sent to him at General Delivery, Hollywood, Florida. At or about 11:30 a.m., April 4, 1997, Anthony Spina, an agency investigator, went to Respondent's office for the purpose of conducting a routine inspection pursuant to Section 465.0276(3), Florida Statutes, to ascertain whether Respondent was in compliance with all statutes and rules pertinent to his dispensing practice. At the time, the office was closed and Mr. Spina was unable to gain entry; however, he did take note of two eight-and one-half by eleven-inch signs posted at the entrance. One sign read, as follows: NOTICE NO TRESPASSING ALL GOVERNMENTAL OFFICIALS KEEP OUT POSTED The other sign read, as follows: NOTICE John Edwin Gdowik, a Good and Lawful Christian man and Osteopathic Physician, teaches and advises patrons on matters of health. All mail should be sent to John Edwin Gdowik General Delivery Hollywood, Florida Following Mr. Spina's return to his own office, he located a listing in the local white pages telephone directory for Respondent at the subject address, and on April 7, 1997, Mr. Spina engaged in a brief telephone conversation with the Respondent. At that time, Mr. Spina informed Respondent that he was proposing to conduct an annual inspection, based on the privilege accorded Respondent as a dispensing physician. In response, Respondent told Mr. Spina to send him a letter to such effect (place his request in writing), and referred Mr. Spina to the sign directing that all mail be sent to Respondent at General Delivery, Hollywood, Florida. Respondent did not, at anytime during the course of such conversation refuse or otherwise imply he would not allow an inspection of his office.1 Mr. Spina did not, however, submit a letter to Respondent or take any further action (of which Respondent would have been aware) to inspect Respondent's office. Following his conversation with Respondent, Mr. Spina apparently notified Hugh Fitzpatrick, his supervisor, regarding his efforts to inspect Respondent's office and the substance of his conversation with Respondent. In turn, Mr. Fitzpatrick informed the agency's legal office, and they requested a written report from Mr. Spina. By memorandum of April 14, 1997 (Petitioner's Exhibit 11), Mr. Spina provided the report requested by the legal office. That report noted the information discussed in paragraphs 4 and 5, supra, and further noted that "[o]n 4/10/97, this investigator . . . returned to the subject's office. The office was closed. We obtained three polaroid photographs [of the signs heretofore discussed]." Mr. Spina's memorandum enclosed photocopies of the photographs.2 Based on Mr. Spina's report, the agency instituted an investigation to resolve whether there was probable cause to believe that Respondent had violated Subsection 459.015(1)(g), Florida Statutes, by "failure to allow inspection by agency for a dispensing physician." (Petitioner's Exhibits 10 and 16A.) Consistent with Subsection 455.225(1)(b), Florida Statutes, by letter of June 4, 1997, Mr. Fitzpatrick, on behalf of the agency, sought to advise Respondent of the pendency of the investigation. The agency's form letter provided, as follows: Dear: Dr. Gdowik: This letter is notification that there is a pending investigation regarding your license to practice in the State of Florida. The investigation is base[d] upon the enclosed document which was determined to be legally sufficient for investigation pursuant to section 455.225, Florida Statutes. You are invited to submit a written response or you may call me to schedule an interview within 45 days of receiving this letter. Your response will be made part of the file and will be considered by the agency and probable cause panel in determining whether a formal administrative complaint should be filed in this matter. In addition, for consideration by the probable cause panel, please provide a copy of your curriculum vitae and identify your specialty, if any. If you choose to send a response, please use the mailing address printed on the bottom of this letter and include the AHCA case number in any correspondence you may send concerning this matter. At this stage, the investigation is confidential. This means that the contents of this investigation cannot be disclosed to you or the general public, nor can it be disclosed to the public the fact that the attached documentation was received, unless probable cause is found or you submit a written waiver of confidentiality. You are not required to answer any questions or give any statement and you have the right to be represented by counsel. It is not possible to estimate how long it will take to complete this investigation because the circumstances of each investigation differ. Thank you for your cooperation and understanding in this matter. If you have any questions or wish to discuss this in greater detail, you may contact me at the telephone number listed at the bottom of this letter. The notification letter was addressed to Respondent at 6136 Johnson Street, Hollywood, Florida, and on June 11, 1997, was returned by the Post Office marked "Return to Sender." The agency took no further action regarding the matter until August 1, 1997, when Mr. Fitzpatrick telephoned Respondent's office regarding the investigation. At the time, Mr. Fitzpatrick spoke with the receptionist, who advised him that the Respondent was busy seeing patients, and she requested that the letter of June 4, 1997, be re-mailed to Respondent at General Delivery, Hollywood, Florida. Mr. Fitzpatrick persisted in his effort to speak with the Respondent, and told the receptionist to advise the Respondent that "if he doesn't call back within the hour, the case report in question will be sent forward." Respondent did not return Mr. Fitzpatrick's call; Mr. Fitzpatrick did not re-post the notification letter; and on August 1, 1997, Mr. Fitzpatrick completed his report and "sent [it] forward" to the legal office.3 (Petitioner's Exhibit 10.) The complaint, as well as the results of Mr. Fitzpatrick's investigation, was presented to the Probable Cause Panel for the Board of Osteopathic Medicine, and on November 12, 1997, the subject Administrative Complaint was issued which charged that Respondent violated the provisions of Subsection 459.015(1)(g), Florida Statutes, because he "failed to cooperate with . . . agency investigators in reference to an inspection of Respondent's dispensing practitioner facility."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which dismisses the Administrative Complaint. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 21st day of April, 1999.
The Issue The issue in this proceeding is whether the Respondent, Jules Jonas Dossick, D.O. violated statutes governing the practice of osteopathic medicine on the grounds alleged in the administrative complaint and if so, what disciplinary action is appropriate. Background and Procedural Matters This proceeding commenced when Petitioner filed its administrative complaint and Respondent timely requested a formal hearing. At the hearing Petitioner verbally amended its complaint by deleting all factual and legal allegations relating to sexual misconduct and violations of Section 459.015(1)(k) Florida Statutes. Petitioner presented evidence through three witnesses and four exhibits. Respondent testified on his own behalf and presented one exhibit. All exhibits were admitted without objection. Petitioner has submitted a proposed recommended order, which proposal has been considered and, in part, included in this order. A specific ruling on each proposed finding of fact is found in the appendix attached hereto. By pleadings dated May 23, 1986, Respondent has moved for a re- hearing and has objected to the Petitioner's proposed recommended order, both on the grounds that he has now retained counsel and should have the opportunity to have the case re-heard with the benefit of an attorney. Respondent had an attorney in an earlier part of this proceeding and discharged him by letter dated February 22, 1986. (see letter attached to motion to withdraw filed March 3, 1986). Approximately two months later the final hearing was held. Respondent had ample time to retain new counsel or ask for a continuance. He proceeded to hearing, aware of his rights and without protest. The record is void of any basis to consider such extraordinary relief.
Findings Of Fact Respondent, Dr. Dossick, is now and at all times relevant has been licensed as an osteopathic physician in Florida under license number OS 0000874. He practices at his clinic, North Miami Medical Center, located at 4805 East 4th Avenue in Hialeah, Florida. (T-10,11). The clinic is comprised of a reception room, a kitchen that is also used as an office, a bathroom near the reception area, a supply room, two examining rooms, and two additional rooms with a bathroom and shower at the rear of the clinic. Dr. Dossick lives at the clinic and keeps the additional rooms for his bedroom, for storage and for personal use. One of the additional rooms was used several years ago as a third examining room. (T-43, 44, 114-116). In January 1985, two investigators from the Department of Professional Regulation went to Respondent's Clinic for an inspection. They took pictures and spoke to Dr. Dossick. Three other individuals were at the clinic the day of the inspection: a man and woman in one examining room, and a woman in what the inspectors thought was an examining room, but was identified by Dr. Dossick as his personal use and storage room. (T-41, 49, 57, 64, 116). The investigators found the clinic in varying stages of filth and disarray. The reception room was old and worn, unclean, but with little sign of current use. The kitchen had dirty dishes and exposed garbage. The examining rooms were fairly neat but the medications on the countertops were old, dirty and, in some cases, expired. There was no garbage in the two examining rooms, but they did not appear clean. The third room, the former examining room (now used for storage and Dr. Dossick's personal living quarters) was a mess: clothing, mail and fast food containers were strewn about, cotton swabs were exposed and piled on a counter; syringes and medications were also exposed on the countertops. In this room the narcotics supply was stored in a locked cabinet. Two dogs were present in the clinic, one of which had patches of hair missing as if diseased. (T-46, 49, Petitioner's Exhibits #3 and #4) There was no evidence that patients had access to the kitchen, supply room or Dr. Dossick's bedroom. Patients occasionally go to the former examining room and wait there prior to seeing the doctor. Dr. Dossick keeps his own dog at the clinic and, even though he does not encourage them, his patients sometimes bring their animals to the clinic with them. Dr. Dossick admitted that he had trouble for a while keeping the place clean. The woman who worked for him injured her knee in a karate tournament and had surgery. While the admission of problems was candid, the excuse regarding the former cleaning worker was confused: the handwritten statement Dr. Dossick presented from Barbara O'Rourke suggested that her accident and subsequent surgery occurred in April and July 1 85, respectively; that is, several months after the DPR inspectors' visit. (T-64, 87-89, 105-106, 112-113). Linda Joyce Godfrey is a patient of Dr. Dossick. She is thirty-nine years old, was born with cerebral palsy, and around 1981 was diagnosed with multiple-sclerosis. She is crippled and walks unaided with considerable difficulty. She has undergone several operations and lengthy periods of hospitalization. She has been under the care of various physicians, including an orthopedist, several neurosurgeons, and another osteopathic physician. (T-66, 69) Ms. Godfrey began seeing Dr. Dossick after an extended hospitalization period. She picked him at random and asked for percodan, a controlled narcotic substance, generally prescribed for pain relief. He refused to give her the percodan and prescribed a non-narcotic medication instead. She continued seeing him and later he prescribed placidyl, percocet and percodan at various times to help her sleep and for the severe pain in her muscles and bones. He did not give her these medications until he obtained her hospital reports and talked with her regular physicians. (T-66,69,81) Ms. Godfrey admits that she was an addict. She claims that Dr. Dossick was initially unaware of this but later helped her get off the habit. On one occasion she went to his office in the state of apparent overdose. He called Hialeah Fire and Rescue and got her out of there. He told her not to come around anymore because he didn't go for drugs. She later went back and asked for help. The evidence is inconclusive as to whether Ms. Godfrey's episode was an overdose or a grand mal seizure. (T-69, 73-76, 80, 90-91). According to Ms. Godfrey, Dr. Dossick injected her with Demerol on only one occasion, around six weeks prior to the hearing, after her apartment was broken into and she was raped. (T-71, 72). The practice of osteopathic medicine encompasses all aspects of medicine commonly referred to as allopathic medicine, but also includes physiotherapy, manipulative therapy, nutrition: a holistic approach. (T-13,14). This characterization of the distinction between the professions is borne out in the statutory definitions of "practice of medicine" and "practice of osteopathic medicine": "Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. 1l. Except for the underlined verbiage the two definitions are the same. See Section 458.305(3) Florida Statutes, and Section 459.003(3) Florida Statutes. One of the rudiments of osteopathic medicine values the "laying of hands" as part of caring for a patient in a very kind and personal manner. Cleanliness of the person and the physical area surrounding the practitioner is essential to avoid transferring disease from one patient to another. (T-18,19) Animals should not be present in the clinic because of the potential for communicating disease to humans through fleas, flies or the animals. (T-18) Old, dirty drugs and syringes should be disposed of in such a manner as to avoid access and use. (T-19,20) The above standards were described in the competent, uncontroverted testimony of Petitioner's expert, Ralph Birzon, D.O. Those standards were violated by Dr. Dossick when he allowed dogs in the clinic, when he failed to properly dispose of old drugs and syringes, and when he failed to keep his clinic clean. Dr. Dossick does, however, treat his patients in a very kind and personal manner. Ms. Godfrey was called as Petitioner's witness. Her testimony was credible and touchingly candid, as also was Dr. Dossick's. Ms. Godfrey said Dr. Dossick helped her; he took pity on her; he is good to his patients and is a good man. She does not have the money to pay for his treatment or the prescriptions, so she sometimes files and answers the phone at the clinic. Dr. Dossick is the oldest physician in the area; he spends a lot of time with his patients and they depend on him. He regularly treats his patients without charge, or for a token fee. He also loans them money for prescriptions. He has treated some patients for 25-30 years. (T-81, 83, 93, 95-96, 103) Dr. Dossick has previously been suspended by the Board of Osteopathic Medical Examiners for six months because of allegations that he prescribed medication without performing an examination. He volunteered this fact. (T-97, 107-109) The violations occurred approximately ten years ago. See Board of Osteopathic Medical Examiners v Dossick DOAH #76-1814; Dossick v Florida State Board of Osteopathic Medical Examiners, 359 So. 2d 12 (Fla. 3rd DCA 1978). The clinic has been cleaned up since the investigators' visit and the dirty and outdated drugs have been discarded. (T- 88,104)
The Issue The issue posed herein is whether or not the Respondent's Osteopathic Physician License should be suspended, revoked or otherwise disciplined based on conduct, which will he set forth herein in detail, as set forth and defined in the administrative complaint filed herein on September 30, 1980.
Findings Of Fact Respondent, during times material, has been an Osteopathic Physician who has been issued License No. 0003850. On or about April 17, 1978, Respondent, Joel Z. Spike, entered into a Consent Agreement with the Board of Osteopathic Medical Examiners, hereinafter referred to as the "Board", the terms of which provided that if the Respondent complied with certain conditions precedent and subsequent to the issuance of a license, that the Board would issue to Respondent a one-year probationary license to practice osteopathic medicine within the State of Florida. Under the terms of the Consent Agreement, Respondent's failure to satisfy any of the conditions subsequent to the issuance of the probationary license would result in an automatic suspension of such license. The Consent Agreement was entered as a final order of the Board. (Petitioner's Exhibit 1). Respondent satisfied the conditions precedent and the Board issued the Respondent a probationary license on April 27, 1978. 2/ On March 28, 1979, it is alleged that Respondent failed to satisfy one of the conditions subsequent to the Consent Agreement of April 17, 1978 by his (Respondent's) failure to make a required annual appearance before the Board to demonstrate his physical and mental condition and ability to practice osteopathic medicine with reasonable skill and certainty. It is thus alleged that pursuant to the terms of the Consent Agreement and order of April 17, 1978, Respondent's license was automatically suspended. 3/ On March 28, 1979, Respondent and the Board entered into a second Consent Agreement under the terms of which Respondent agreed to cease and desist from the practice of osteopathic medicine in this State until such time as the Respondent could make a personal appearance before the Board, such appearance being an unsatisfied condition subsequent or required by the first Consent Agreement entered by and between the parties dated April 17, 1978. Respondent signed the second Consent Agreement which was entered as a final order from the Board and became effective April 24, 1979. On July 18, 1979, August 1, 1979, September 19, 1979, September 25, 1979, July 24, 1979, October 8, 1979, November 5, 1979, October 31, 1979, and October 22, 1979, Respondent wrote prescriptions for Percodan tablets to one Eliot Schuler. Petitioner alleges that such conduct constituted the practice of osteopathic medicine as to Eliot Schuler, without an active license, and while Respondent's license was suspended in violation of Section 459.013(1)(a) and (b) Florida Statutes (1979), and the provisions of Section 459.015(1)(x), Florida Statutes (1979). 4/ Respondent disputes the allegations that he wrote prescriptions for Percodan tablets to Eliot Schuler without an active license to practice osteopathic medicine. On April 9, 1980, in the Circuit Court for the 11th Judicial Circuit, Respondent pled nolo contendere to all counts of an eight-count information alleging two counts of the unlawful practice of medicine and six counts of sale or delivery of a controlled substance. Respecting this plea, the court withheld adjudication and Respondent was placed on probation initially for a period of eighteen (18) months. Petitioner thus alleges that Respondent thereby violated Section 459.015(1)(c), Florida Statutes (1979). Respondent defends the complaint allegations on the basis that the Board did not automatically suspend his license since he provided the Board with ample notice and a justifiable reason for his failure to attend the required annual appearance as set forth in the April, 1978 Consent Agreement. (Petitioner's Exhibits 1 and 2). In this regard, it is undisputed that the Respondent entered a plea of nolo contendere to two counts of the unlawful practice of medicine and six counts of the sale or delivery of a controlled substance in violation of Chapters 458.327, 459.013 and 893.13, Florida Statutes. Respondent was initially placed on probation for an eighteen month period and an order of modification was subsequently entered which changed his probation from reporting to non-reporting. (Petitioner's composite Exhibit 3). It is also undisputed that the Respondent was advised by Petitioner's Executive Director of the reporting requirements (annually) which was entered by Petitioner and Respondent on April 17, 1978. (Petitioner's Exhibit 4). In this regard, Respondent's prior counsel, Phillip J. Mandina, requested a continuance of the Board's annual meeting to consider Respondent's probationary licensing due to his confinement in a hospital in Miami, Florida. (Petitioner's Exhibit 5). Documentary evidence introduced and received herein reveals that Respondent was a patient at the emergency room at Biscayne Medical Center on January 26, 1979 with a diagnosis of multiple trauma as a result of an automobile accident. Emergency room record notations reveal that Respondent had taken 150 milligrams of Demerol earlier on the 26th of January, 1979 and he had in his possession one empty thirty cc vial of Demerol 50 milligrams/cc and one 20cc vial of Demerol 100 milligrams/cc of which there were approximately 9cc's remaining. A consulting psychologist and an orthopedic surgeon who attended Respondent during his visit at Biscayne Medical Center concluded that Respondent suffered from severe chronic drug addiction and should receive proper treatment for this disease prior to any resumption of treating of patients. (Petitioner's composite Exhibit 6). Respondent submitted a renewal fee of $85.00 for the renewal of his osteopathic medical examiner's license. By letter dated August 28, 1980, the Board's Executive Director, Dorothy Faircloth, notified the Administrator for the Office and Records Administration, Charles R. Beck, that Respondent should not have been allowed to renew his license under the terms of the subject Consent Orders and requested that Respondent return the license issued. It was also indicated that a $85.00 refund would be processed and forwarded to Respondent within approximately four weeks. (Petitioner's Exhibit 7). Finally, Respondent contends that even though he was of the opinion that he possessed an active license, he would not actively engage in the practice of medicine. Respondent is presently involved in a marriage counseling practice and his ultimate goal is that of teaching and conducting therapy sessions. To support his position that he still possessed a license to practice medicine, Respondent pointed out that when he submitted his renewal fee, his license was issued and no action was taken by the Board to retrieve his license until approximately September 12, 1980. Respondent avers that that was his first notice that the Board considered his license suspended due to his failure to appear before the Board annually as per the April 17, 1978 Consent Agreement. Respondent urges that he felt that the request from his former counsel for an abatement of the annual review proceedings of his probationary status had been received and granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license to practice osteopathic medicine be suspended for a period of two (2) years from the date that the Board takes final agency action. RECOMMENDED this 12th day of March, 1981 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1981.
The Issue The issues are: (1) Whether Respondent exercised influence within a physician-patient relationship for the purpose of engaging a patient in sexual activity in violation of Subsection 459.015 (1)(l), Florida Statutes; (2) Whether Respondent engaged a patient in sexual activity outside the scope of practice or the scope of generally accepted examination and treatment of the patient in violation of Section 459.0141, Florida Statutes; and (3) If so, what disciplinary action should be taken against his license to practice as an osteopathic physician.
Findings Of Fact Petitioner, the Department of Health, Board of Osteopathic Medicine, is the state agency charged with regulating the practice of osteopathic medicine pursuant to Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto a licensed osteopathic physician in the state of Florida, having been issued License No. OS-004450. Respondent has a bachelor’s degree and a master’s degree in clinical psychology and experimental psychology from Temple University, was an assistant professor of psychology at a community college before studying osteopathic medicine, and taught as an assistant professor of psychiatry in family practice at Southeastern Osteopathic Medical School. Respondent completed a residency program at Southeastern Osteopathic Hospital in North Hollywood, Florida, and also completed a three-year family practice residency program. After completing his residency programs, Respondent moved to Sarasota, Florida, and began as a family practice physician. In December 1998, Patient K.C. (K.C.) was 33 years old, married, and the mother of two children, six and two years old. Before getting married, K.C. had lived with her parents. She had attended community college for two years but did not obtain a degree. K.C. had been employed as a sales clerk and clerical staff person. On or about December 29, 1998, K.C. first presented to Respondent suffering from migraine headaches and neck pain, chronic conditions she had suffered for approximately ten years. From December 29, 1998, through or about October 1, 1999, Respondent provided osteopathic medical treatment for pain to K.C. During this period of time, Respondent treated K.C.'s migraine headaches and neck pain with heat, osteopathic manipulation, and prescription medication. Respondent also diagnosed anxiety and depression for K.C. and prescribed medication, Ativan, for this condition. Throughout the time Respondent saw K.C., he also prescribed up to six tablets per day of a sedative, Fioricet. During the time that Respondent was treating K.C., he saw K.C. once or twice a month, except for April, August, and September 1999. Respondent's records reflect that he saw K.C. four times in April, three times in August, and six times in September. There are several manipulation techniques used by Respondent in treating patients. One manipulation technique used by Respondent involves traction of the neck and movement of the patient’s head while the patient is lying down on her back. Another technique, while the patient is lying on her back, involves Respondent’s using his chest to exert pressure down on the patient’s crossed arms and body through the spine to Respondent’s hands located behind her neck and thoracic spine. Another technique has the patient roll over to the side with the leg up to the side while Respondent adjusts her pelvic bone. During this procedure, Respondent’s hand and forearm arm are placed on the buttocks to effect a pushing or pulling of the pelvic bone. The last technique Respondent provides is for the upper thoracic and lower neck area. For this, the patient places her hands on top of her head. Respondent then brings his hands around the torso from behind, placing them at the back of her neck. While the hands provide traction to the neck, Respondent pushes his chest against the spine of the patient to lift the thoracic vertebrae. It is not uncommon during this procedure for Respondent to brush his hands on the patient’s breast. Respondent’s normal office procedure is to do manipulations on patients in his treatment room with the door closed and no other persons present for 10 to 15 minutes. From December 1998 until August 12, 1999, Respondent provided adjustments to K.C. and prescribed medication and did not engage in any sexual activity or relationship with K.C. Prior to August 12, 1999, during his treatments of K.C., Respondent sometimes engaged in "random conversations." For example, during one treatment Respondent asked what kind of car she drove and when she told him, Respondent asked K.C, if her husband cared about her. Respondent told K.C. that a sports utility vehicle (SUV) was a safe vehicle, especially for someone with her condition and indicated that his wife drove an SUV. Respondent then insinuated that if K.C.'s husband cared about her, he should or would buy her an SUV. During another treatment, Respondent told K.C. that she had a good body and asked if she had been a cheerleader. During another treatment, Respondent, while engaging in conversation with K.C., made an unrelated statement about how many times per week the average married couple has sex. At another time, while treating K.C. at his office, Respondent mentioned that the sex life of people with chronic pain may be affected by their condition and asked if her sex life was so affected. Still, during another treatment, Respondent asked K.C. about her relationship with her husband, specifically inquiring as to how they related to one another. In the summer of 1999, K.C. traveled by car to Canada to visit her husband's family. For K.C., the trip to Canada was stressful and while there, she was in a lot pain. Because of the pain she was experiencing, K.C. called Respondent's office while she was still out-of-town to schedule an appointment for an adjustment upon her return to Sarasota and to request that one of her prescriptions be refilled. After K.C. returned from the trip to Canada, on the morning of August 13, 1999, she went to Respondent's office for her scheduled appointment for an adjustment. When K.C. arrived at Respondent's office, she was in a lot of pain and began to cry. K.C. told the nurse or medical assistant that she was in a lot of pain and had had a "bad trip to Canada." The nurse then escorted K.C. to an examination room. When Respondent came into to examination room, K.C. was sobbing and could hardly talk. Respondent asked K.C. to explain why she was so upset. Respondent proceeded to do an adjustment and, again, asked K.C. why she was so upset. K.C. described her feelings to Respondent, who then told K.C. that he used to counsel with patients, that he had helped a girl just like her, and that he could help her if she were willing to come back to the office and talk with him. After K.C. agreed to come back and talk to Respondent, he asked K.C. how he could reach her. In response, K.C. gave Respondent her pager number. After K.C.'s morning appointment on August 13, 1999, Respondent contacted K.C. on her pager and asked if she had made arrangements for her sons to be taken care of so that she could come back to the office to talk with him. K.C. told Respondent that she had made arrangements for her sons and agreed to return to Respondent's office that afternoon. When K.C. returned to Respondent's office on the afternoon of August 13, 1999, Beverly Carrington (Beverly), a medical assistant in Respondent's office, was vacuuming the office. At Respondent's direction, Beverly took K.C. to an examination room. Several minutes later Respondent came into the examination room and told K.C. that he had to make some calls and that he would be back in a few minutes. Respondent gave K.C. a sandwich that he said he had left over from lunch. After Respondent gave K.C. the sandwich, he left the examination room, closing the door behind him. Respondent eventually returned to the examination room and sat in a chair next to the chair in which K.C. was sitting. Respondent began asking K.C. questions about herself, similar to questions that she had been asked by counselors or psychologists. While Respondent was talking to K.C., Beverly knocked on the door of the examination room and told Respondent that she had finished vacuuming the office. Respondent indicated to Beverly that she could go home and soon thereafter, Petitioner heard Beverly leave the building.1 After Beverly left the office, Respondent continued to ask K.C. questions for the next 15 or 20 minutes. Respondent then asked K.C. to get up from her chair, face the mirror in the room, and look in the mirror. K.C. felt uncomfortable looking in the mirror, so she kept her head down. Respondent then put his hands on K.C.'s face and held her face up so that she was looking in the mirror. While doing this, Respondent asked K.C., "Don't you know you're beautiful?" Respondent placed his hands on K.C.'s shoulders and brushed his lips against her neck. Respondent began rubbing or massaging K.C.'s neck and while doing so told K.C. that she was "real tight in [her] neck" and that he would like to work on her neck again and see if he could loosen it up and help her relax. Respondent then led her to the examination table and "proceeded to rub [her] neck and then he started to take off [her] clothes." While on the examination table, Respondent helped K.C. take off her shirt, shorts, bra, and shoes and the only remaining clothing that she had on was her underwear. After her clothes were removed, K.C. presumed Respondent would cover her with a towel or give her a robe, but he did not provide K.C. with any covering. Instead, Respondent sat behind K.C., massaged her neck, and talked to her "soothingly" for about ten minutes. Respondent then took his hands and rubbed her arms and then moved his hands to her breasts, and then down to her waist and towards her panties. When Respondent moved toward K.C.'s panties, she would "tense up" and then Respondent would "start rubbing up the top part of her again." Respondent's hands again went toward her underwear and he "put his hand to go under [K.C's] underwear." K.C. was nervous about what was going on and told Respondent that she was uncomfortable. After K.C. told Respondent that she was uncomfortable, he acknowledged that she seemed uncomfortable. Respondent then handed K.C. her clothes, assisted her in sitting up on the examination table, and sat on the table while K.C. dressed herself. After talking to Respondent for about five minutes, K.C. left the doctor's office with a worse headache, feeling distraught. K.C. next saw Respondent a few days later, on a Monday or Tuesday, for an adjustment for a headache and pain. Respondent performed an adjustment on K.C. that day. During this appointment, Respondent, again, told K.C. that he wanted to help and counsel her. He told K.C. about an upcoming gun show and stated that they could talk while driving to the gun show. Later that week, Respondent paged K.C. and asked her to come to his office. In response to Respondent's request, K.C. went to Respondent's office. Once there, Respondent took K.C. to an examination room and talked to her again about the gun show. Respondent again told her that he would like for her to go to the gun show with him so that they could have time to talk. K.C. was in Respondent's office that day about ten minutes and did not receive a treatment. A few days later, on Saturday, K.C. met Respondent at his office to go the gun show. When she got there, Respondent recommended that she leave her car at the office and ride in his Toyota 4-Runner so that they could talk. Respondent stated that he and K.C. were going somewhere in Palmetto, Florida, but they actually ended up at the Manatee Civic Center. While Respondent was driving to the gun show, he told K.C. that he hoped that he was not mistaken as to the dates of the gun show. In fact, when Respondent and K.C. arrived at the Manatee Civic Center, there was no one there. Nevertheless, Respondent pulled his car into a space in the parking lot on the side of the building. Respondent left the car running and took off his seat belt as he talked to K.C. At some point, Respondent kicked his shoes off and loosened his pants and/or pulled them down, reached over toward K.C., took off her seat belt, told K.C. to get more comfortable, and adjusted her power seat in his Toyota 4-Runner to lean back more. Respondent then touched K.C.'s genitals and proceeded to get on top of her and have intercourse. While on top of her, Respondent pointed out that there were police cars in the back of the parking lot. Once Respondent pointed out the police cars, K.C. observed two or four police cars in the parking lot. Even though there were no policemen in the cars, K.C. expressed concern about the police cars to Respondent. Respondent told K.C. that she should not worry because the windows in his vehicle were tinted. Respondent and K.C. were in the parking lot about 20 minutes, although the intercourse was only three to five minutes. After the intercourse, Respondent put his clothes back on or pulled his pants up and drove back to his office. This was the first time that Respondent and K.C. had intercourse. A few days later, K.C. and Respondent engaged in sexual activity in Respondent’s vehicle during lunch while they drove to Marina Jack’s. Respondent picked up lunch at the hospital and then returned to the parking lot of his office, where K.C. met him. K.C. left her car in the parking lot and got in Respondent's Toyota 4-Runner. Respondent gave K.C. her lunch and then "fingered" her while she ate her lunch as he drove to Marina Jack's. During the period between August and October 1999, K.C. went to Respondent's house on Siesta Key. The house was in a gated community, and in order to gain entry, K.C. told the guard at the gate that she was going to Respondent's house and would give the guard her name or another name that Respondent had told her to use. At other times, K.C. would follow Respondent through the gate in her car. Some of these visits were on weekdays during Respondent's lunch break. During some of those visits, K.C. and Respondent would talk and have intercourse. K.C. and Respondent had intercourse at Respondent's house about ten times. One Saturday between August and October 1999, K.C. went to Respondent's house after he invited her to come out and talk to him and go to the beach. That day Respondent met K.C. somewhere in town and drove her to his house. When they arrived at Respondent's house, K.C. took out a bathing suit and went upstairs to change. It is unclear whether K.C. and Respondent had intercourse or engaged in any sexual activity on this day. K.C. contemporaneously reported the sexual relationship with Respondent to her husband and to a minister who had known and counseled her before she met Respondent. K.C. told her minister that the sexual activities with Respondent had occurred in Respondent's office, vehicle, and home. K.C. and Respondent had intercourse a couple of times at the home of a friend of Respondent's, Carole, that was on Tangerine Street and at the home of one of Respondent's friends, Jack Kentish. One Sunday morning in late September, K.C. went to Respondent’s office.2 While there, she went into an examination room to change clothes so that she would have attire appropriate to accompany Respondent to a gun show. About that time, K.C.'s husband showed up at Respondent's office, knocked on the office door, expressed his displeasure at the fact K.C. was there, and had a verbal confrontation with Respondent. K.C.'s husband stopped at Respondent's office after he saw his wife's car parked there. The incident described in paragraph 29, led to Respondent sending a letter dated September 28, 1999, to K.C., advising her that his professional relationship with her would terminate within 30 days. The reason for the 30 days was to allow K.C. time to find another physician. In October 2000, K.C. was admitted to Sarasota Memorial Hospital suffering from major depression, Fioricet dependence, and chronic pain. At or near the time of her admission and at this proceeding, K.C. acknowledged that she had some loss of memory surrounding the events related to the three-month period in which Respondent engaged in improper sexual conduct with her.3
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order finding that Respondent violated Subsection 450.015(1)(l) and Section 459.0141, Florida Statutes, and Subsection 459.015(1)(bb), Florida Statutes (1999), now 459.015(1)(pp), Florida Statutes, and suspending his license to practice osteopathic medicine in the State of Florida for one year and imposing an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of August, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 5th day of August, 2003.
Findings Of Fact The following Findings of Fact are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to these proceedings, Respondent was a licensed osteopathic physician within the State of Florida, having been issued license number OS 8729. Respondent's address of record at the time of filing the Administrative Complaint was 11950 County Road 101, Suites 101, 102, and 103, The Villages, Florida 32162. Respondent's current address of record is 13767 U.S. Highway 441, Lady Lake, Florida 32159. Respondent currently holds no board certification in any specialty area, and did not complete any residency other than in emergency medicine. Respondent attended Michigan State University, College of Osteopathic Medicine. In 2002, he began full-time practice as an emergency room physician at Munroe Regional Medical Center in Ocala, Florida. He worked as an emergency room physician until he opened Exceptional Urgent Care Center (“EUCC”). At all times material to this complaint, Respondent owned and operated EUCC. Treatment Provided to Patient J.K. On March 15, 2018, J.K., along with his wife, presented to EUCC with complaints of a sore throat and fever. This was the first of two visits to the clinic. J.K. reported his medications as Amlodipine, Warfarin, Tamsulosin, and Dofetilide (unless otherwise indicated, hereinafter referred to by its trade name "Tikosyn"). J.K. was prescribed these medications by his cardiologist at the William S. Middleton Memorial Veterans Hospital (“V.A. Hospital”) in Wisconsin, his home state. Relevant to this matter, Tikosyn helps patients maintain a normal heartbeat rhythm. Tikosyn was prescribed to keep J.K.'s heart in rhythm as he had atrial fibrillation. J.K. was treated by a nurse practitioner, who ordered a chest x-ray and a flu swab. The flu swab returned negative, and the chest x-ray showed no focal pneumonia. J.K. was prescribed Tamiflu and Naproxen. J.K. elected not to fill the Tamiflu due to the “expensive cost.” Respondent was not involved in J.K.'s treatment on this date. On March 16, 2018, J.K. and his wife K.K. returned to EUCC as J.K.’s symptoms had not improved. On this visit, J.K. saw Dr. Im. Dr. Im evaluated J.K. and ordered two tests. Dr. Im ordered a Prothrombin Time International Normalized Ration ("PT INR") test to determine J.K.'s coagulation and he ordered a CT scan of the chest. The PT INR results were within the therapeutic range. The CT scan showed shattered ground- glass opacification in the posterior right lower lobe and the medial left upper lobe. The CT scan findings were interpreted as "non-specific, may represent hypoventilatory change or an infectious inflammatory process (acute or chronic).” Respondent advised J.K. and K.K. that the CT scan appeared to show the start of pneumonia, and he was going to prescribe three medications: Levaquin 750 mg, Prednisone 20 mg, and Zyrtec 10 mg. K.K. testified that she asked Respondent if the Levaquin, Prednisone, or Zyrtec were contraindicated with any of J.K.'s current prescriptions, specifically Tikosyn. K.K recalls that Respondent replied that he was not familiar with Dofetilide (Tikosyn), and advised them to check with the pharmacist to see if there were any contraindications. Although Respondent initially advised J.K. and K.K. that he was not familiar with Tikosyn, Respondent testified that he advised J.K. and K.K. of the possible interactions between Levaquin and Tikosyn and told her that the interaction was very rare. He testified that he advised J.K. and K.K. that the pharmacist is a safety net, and the pharmacist would call him to discuss the prescriptions if he missed anything. K.K. credibly testified that Respondent did not counsel J.K. or K.K. on any risks regarding the medications Dr. Im prescribed or provide them with any alternatives during the visit on March 16, 2018. J.K. and K.K. left EUCC and went to Publix to fill the prescriptions. K.K. asked the pharmacist if any medications would interfere with any of J.K.'s prescribed medications. Upon advice of the pharmacist that Levaquin was contraindicated with Tikosyn, K.K. declined to fill the prescription for Levaquin. On behalf of J.K., K.K. then called EUCC and asked for a different antibiotic that would not interact with Tikosyn. However, she was instructed to contact J.K.'s cardiologist. K.K. then contacted the cardiology staff of the V.A. Hospital in Wisconsin, who instructed K.K. to follow the advice of the pharmacist and (tell J.K.) not to take the Levaquin. K.K. called EUCC a second time to confirm whether J.K. had an infection and she was told that J.K. did not have an infection. Respondent recalls that he had a personal conversation with K.K. during a courtesy telephone call placed the next day (March 17, 2018). Respondent testified that during that call, he explained Levaquin was the drug of choice, other medications would not cover J.K.'s pneumonia, the potential interactions were very rare, and J.K. needed to take the Levaquin. By his own admission and his medical records, Respondent did not provide J.K. or K.K. with any specific alternative antibiotics and insisted that J.K. needed to take the Levaquin. K.K. disputes that Dr. Im spoke with her or J.K. at any point after the March 16, 2018, visit. She clearly recalled that she spoke with a woman each time she spoke with staff at Dr. Im’s office. Overall, J.K. and K.K. clearly and convincingly testified that Respondent never advised them of the risks of using Levaquin with Tikosyn or provided any alternatives to the Levaquin. Expert Testimony Petitioner offered the testimony of Dr. Anthony Davis, who testified as an expert. Dr. Davis has been licensed as an osteopathic physician in Florida since 1995. Dr. Davis attended Kirksville College of Osteopathic Medicine and completed an internship in family practice. He has been board certified in family medicine by the American Board of Osteopathic Family Physicians since 2001, and board certified in emergency medicine by the American Association of Physician Specialists since July 2003. He is also affiliated with professional organizations including the American College of Family Practice and Florida Osteopathic Medical Association. Dr. Davis was accepted as an expert in emergency and family medicine. Dr. Davis relied upon his work experience, his training, and his review of the medical records for J.K. to render his opinion regarding the standard of care related to treating J.K. The standard of care requires an osteopathic physician treating a patient similar to J.K. to: (1) provide and document their justification for why Levaquin was the appropriate drug of choice; (2) note the patient’s acknowledgment that there are interactions with Tikosyn; (3) ensure the patient understands the risks and benefits of combining Tikosyn and Levaquin; (4) explain to the patient that there are limited alternatives to Levaquin; and (5) provide the reason for prescribing a potentially dangerous drug. Levaquin is a medication that comes with a black box warning that requires physicians to counsel patients on the risks associated. When a drug is designated as contraindicated and has a category X for interaction, the standard of care requires that the physician clearly explains to the patient why they are using the drug and defend how it is going to be safe. Tr., p. 70. Dr. Davis opined there were multiple treatment options available for J.K., such as supportive care or an antibiotic with a lower risk of interaction with J.K.'s existing medication. Moreover, Dr. Davis testified that there were safer alternatives to Levaquin that would effectively treat pneumonia, such as doxycycline, if J.K. actually had pneumonia and an antibiotic was necessary. Respondent provided literature from the Infectious Diseases Society of America related to community-acquired pneumonia in an attempt to prove that X-Ray or other imaging techniques are required for the diagnosis of pneumonia and to support his claim that Levaquin was the drug of choice for J.K. However, Dr. Davis credibly pointed out that the article, published in 2007, is no longer accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a Final Order as follows: Finding that John Joseph Im, D.O., violated section 459.015(1)(x), by committing medical malpractice, as defined in section 456.50, as alleged in the Administrative Complaint; Issue a letter of concern against Respondent’s license to practice osteopathic medicine; Requiring completion of a prescribing practices course; and Imposing an administrative fine of $2,500. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of December, 2019.
