Findings Of Fact The Respondent, Peter Alagona, Jr., is licensed to practice medicine in the State of Florida. He is board-certified in internal medicine with a subspecialty in cardiology and has practiced cardiology since 1981. There is no evidence that the Respondent has been the subject of professional discipline except for this proceeding. In 1989, the Respondent became acquainted with V.P., who worked as a receptionist at a hospital where he had practice privileges. Their work relationship became friendly and, although the Respondent was married and had children, he and V.P. responded to each other's friendly manner by mutual flirtation. At first, their flirting was discrete but later became more open and romantic. The Respondent began to write V.P. notes and greeting cards and send her flowers. In approximately May, 1989, V.P. indicated her willingness to begin an intimate and sexual relationship. The Respondent did not hesitate to oblige her. There is no evidence that the Respondent used a doctor-patient relationship to induce V.P. to engage in sexual activity with him, as alleged. When the sexual relationship began, there was no doctor-patient relationship between them. During her tenure at work at the hospital, V.P. from time to time complained of a rapid heart beat, and one of the four cardiologists at the hospital would respond to her complaint. The Respondent was one of the several doctors who had occasion to respond. No treatment ever was required. V.P.'s heart beat would soon return to normal, and everyone would return to work. No true doctor-patient relationship was established, and neither the Respondent, the other doctors nor V.P. ever thought one had been established. The allegation that the Respondent essentially intentionally used drugs he prescribed for V.P. during the course of their affair to control her and prolong the sexual relationship with V.P. against her will hinges on the following reference in V.P.'s deposition transcript: Q. Just so that I'm clear, did Alagona ever tell you that if you did not have sex with him, he would not write prescriptions for you? A. Those aren't the words. He has made comments about, "Where are you going to get your prescriptions?" Q. When did he make those comments? A. I don't know. During the relationship, at the end of the relationship. Q. Give me some of the circumstances surrounding those comments. A. It was, I'm sure, during an argument or something. I don't know. In view of all the evidence, that allegation is rejected as not proven. It is factual that, in another poor judgment that flowed from the poor judgment in initiating and conducting the affair in the first place, the Respondent began to act as V.P.'s personal physician for limited purposes during the course of the affair. When she complained of migraine headaches, he prescribed pain medication such as Tylox, a Schedule II controlled substance containing oxycodone, and Inderal, a beta-blocker and a legend drug. For stress, he prescribed Valium, which contains diazepam, also a legend drug. Although the Respondent clearly was acting as the doctor in a doctor-patient relationship when he prescribed these drugs, he still did not view himself as acting in that role and did not keep a written record of the drugs or the course of treatment in connection with those prescriptions. The allegation that the Respondent failed to practice medicine in accordance with required standards of care by not ordering the patient to receive mental health counseling but instead inappropriately allowing the patient to remain on Tylox also depends in large part on the testimony of V.P. In view of all the evidence, V.P.'s testimony pertinent to this allegation is rejected. The evidence was that the Respondent repeatedly advised V.P. to seek counseling, albeit not for drug abuse. Until April, 1990, the Respondent was not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions were not excessive and would not, in and of themselves, have indicated to the Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox; nor did V.P. exhibit clear signs of drug abuse or addiction prior to April, 1990. However, V.P. apparently was obtaining Tylox and other legend drugs from other sources without the Respondent's knowledge. She was seeing other physicians for the purpose of obtaining prescriptions, and she also was forging the Respondent's and other doctors' names to prescriptions to obtain additional drugs illegally. (One of the doctors whose name she forged predeceased the date of the forged prescription.) In April, 1990, the Respondent was notified that V.P. had been hospitalized for a drug overdose. In response to the request for advice from the attending physician, the Respondent recommended a psychiatrist for counseling. However, V.P. did not cooperate. She attended only one counseling session and refused further counseling. After the overdose hospitalization, the Respondent did not prescribe any more Tylox. However, again without the Respondent's knowledge, V.P. continued to obtain Tylox and other drugs from her other sources. The Respondent's judgment continued to be distorted and poor as a result of his intense sexual and romantic relationship with V.P. He continued to urge V.P. to obtain counseling for several reasons but, again, not specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and she began putting pressure on the Respondent to divorce his wife and marry her. She began acting erratically, and her judgment also was poor. During a week- long visit to her family's home during the summer of 1990, she contacted an old boy friend, married him, changed her mind, and began annulment proceedings. By late 1990, V.P. started dating another doctor, and the pressure on both V.P. and the Respondent increased. The Respondent was unable to decide what to do, and the stress got ever greater as V.P. threatened to end the affair with the Respondent. While probably genuinely concerned for V.P.'s welfare, the Respondent probably also believed that, if V.P. got counseling, she would "see the light" and decide not to end their affair. Finally, the Respondent himself felt the need for counseling due to the stress of the affair, and he probably believed that she felt the same stress. Eventually, in early 1991, V.P. followed through on her threat and made it known to the Respondent that she was dropping him and choosing the other doctor. For some time, the Respondent was devastated and continued to try to persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute, holding out to the Respondent some hope that she would return to him if he divorced his wife. Finally, practically an emotional wreck and despairing of any other way to get over his affair with V.P., the Respondent checked himself into an out-of-town residential psychiatric program. He purposely did not tell V.P. where he was, but she found out and, on the day of his discharge, sent him flowers with a card saying that she would never let him go. Eventually, the affair ended, and V.P. married the other doctor soon after.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent not guilty under Counts I and II but guilty under Count III; (2) placing him on probation for two years; (3) requiring him to take appropriate continuing medical education, if available, dealing with the physician-patient relationship and the prudence of avoiding the dual sexual/physician-patient relationship; and (4) imposing on him an administrative fine in the amount of $2,500. DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to second sentence of 5., although he cannot now remember when he prescribed Tylox, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately approximately when and what he last prescribed so as not to expose V.P. to a health risk. 6. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to the last sentence, although he cannot now remember his prescriptions, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately when and what he last prescribed so as not to expose V.P. to a health risk. 7.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that patients need to be kept under "surveillance." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. As to last sentence, rejected as not proven that all "drugs," in all doses, "control a patient's emotional state and level of pain." Accepted that some can, in certain doses, and otherwise accepted and incorporated to the extent not subordinate or unnecessary. Accepted that it is not the only indication; subordinate to facts contrary to those found, and unnecessary. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent "did not follow through with V.P.'s medical problems." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, rejected as not proven; third, accepted that she said it, but subordinate to facts contrary to those found. First sentence, rejected as not proven; rest, accepted that she said it, but subordinate to facts contrary to those found. Rejected as not proven that he reviewed all of the prescription and hospital records. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. To the extent not conclusion of law, accepted and incorporated. First sentence, rejected as not proven; second, cumulative; third, in part cumulative and in part rejected as not proven (that he had no justification); fourth, accepted but subordinate to facts contrary to those found (he did some diagnostic testing); and last two rejected as not proven in that the evidence was that V.P. rejected the Respondent's repeated recommendations to her that she seek mental health counseling, but otherwise accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, accepted but not necessary; rest, rejected as not proven. Respondent's Proposed Findings of Fact. 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate. Conclusion of law. Accepted and incorporated. 26.-27. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. In large part, argument and conclusion of law; in part, accepted but largely subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that it is "clear . . . that V.P. feels that Alagona left her." (Much of their behavior is difficult to explain, such as why V.P. would act as if she did not want to let Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely subordinate and unnecessary. Accepted but largely subordinate and unnecessary. Last sentence of C), rejected as contrary to the greater weight of the evidence that it is "safe to infer that V.P. forged these prescriptions." (The evidence raises the question and possibility of forgery, especially in the absence of testimony on the subject from V.P. and Palay, but it is not "safe to infer.") Otherwise, accepted but largely subordinate and unnecessary. First four sentences, argument and subordinate. Rest, generally accepted and incorporated to the extent not subordinate or unnecessary. (However, while V.P. may have been "in the emotional driver's seat," it does not appear that she knew where she was going.) Accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. As to the third and fourth sentences, there was no evidence as to the nature of doctors' "orders." But, based on the evidence, the Respondent did not "order" counseling. He suggested or recommended it and offered to help her get it, and V.P. declined. If the Respondent had "ordered" counseling, the patient still may or may not have followed his "order." In either case, it would appear that the critical decision is what a physician does in the face of the patient's failure to comply. It would seem that the only thing a physician reasonably can do in this situation is stop prescribing and, if necessary, terminate the physician-patient relationship. As to the rest, accepted but subordinate to facts found, and unnecessary. 39.-42. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Regional Office VI-Legal Division 9325 Bay Plaza, Suite 210 Tampa, Florida 33619 L. D. Murrell, Esquire 319 Clematis Street, Suite 400 West Palm Beach, Florida 33401-4618 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of chiropractic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Rodriguez was a licensed chiropractor in the State of Florida, having been issued license number CH 9812 on September 17, 2009. Dr. Rodriguez's address of record with the Department is 1840 Northwest 122nd Terrace, Pembroke Pines, Florida 33026. Patient D.H. was a 22-year-old patient of Dr. Rodriguez. She had been referred to Dr. Rodriguez by her mother, also a patient. Patient D.H. was the one who suggested initial treatment with Dr. Rodriguez. She had seen him about six times over a period of two months. On or about June 6, 2012, Patient D.H. presented to Dr. Rodriguez for chiropractic treatment. Dr. Rodriguez began treating Patient D.H. in one of the treatment rooms in his practice. As she was turning over on the examination table, Patient D.H.'s left breast was exposed. Dr. Rodriguez commented on her breast being exposed. Patient D.H. replaced her breast under her tank top. As Dr. Rodriguez continued with his treatment, her breast was again exposed, prompting Dr. Rodriguez to say that Patient D.H. was getting him excited, or words to that effect. Dr. Rodriguez touched both of her breasts with his hands. He then kissed her breasts. Patient D.H. testified that she was in shock because his actions were sudden and caught her off guard. Dr. Rodriguez left the room. Dr. Rodriguez's staff placed Patient D.H. in a massage chair in a common area of the office. After Patient D.H. stated that she still had pain, she was taken into another room for an additional treatment on her shoulder. In the new room, Patient D.H. lay down on the treatment table. After placing some patches on her shoulder, Dr. Rodriguez again touched her breasts. He placed his hand inside her pants and inserted two fingers into her vagina. She testified that she told him to stop. Dr. Rodriguez again told her how she excited him. Patient D.H. later testified that she was in shock and unable to react. Dr. Rodriguez and Patient D.H. made a "pinky promise" not to say anything, and then Dr. Rodriguez washed and dried his hands. He placed a Chinese herbal remedy above her left breast, told her to sleep, and left the room. When he returned, Patient D.H. began crying. Dr. Rodriguez gave her a hug and kissed her on the cheek. While Patient D.H. was in a treatment room with Dr. Rodriguez, he engaged in sexual contact with her which was outside the scope of her medical treatment. Other than as described, Patient D.H. made no complaint to Dr. Rodriguez, nor did she complain to an office staff member. Patient D.H. left Dr. Rodriguez's office and started driving to her cousin's house. She then pulled over and called the police and her mother to tell what had happened. Patient D.H.'s mother testified that she received a phone call from her daughter about 5:00 p.m., saying that Dr. Rodriguez had molested her, and immediately went to meet her. Patient D.H.'s parents took her to the Cooper City district office of the BCSO to report the crime. On June 11, 2012, in conjunction with a criminal investigation by the BCSO, Patient D.H. made a controlled telephone call to Dr. Rodriguez while in the presence of a detective. During the conversation, Dr. Rodriguez said that he did not want to discuss things on the telephone because he could not be sure he was not being recorded, and asked Patient D.H. to come see him at the office. Patient D.H. said she would be uncomfortable seeing him and that is why she had called on the telephone. Their conversation included words to the following effect: Patient D.H.: Do you . . . do you really do this to your other patients? Dr. R.: I don't. That's why I'm . . . I couldn't sleep this weekend. I . . . I . . . I'm exhausted. I'm physically and mentally exhausted. Patient D.H.: But why me? Dr. R.: I don't know. It just happened, hon. That's what I'm telling you, it just, it just happened. Patient D.H.: I just want to know why me? Dr. R.: I don't . . . I don't know . . . I, I just don't know. Um . . . you know, and I wasn't sure because you know, um . . . you know you, you um, when you came about, you showed me your breasts, um . . . . Patient D.H.: It wasn't . . . you know, it was an accident, I wasn't trying to personally . . . . Dr. R.: No, but you know, but when you did the other part, you know, then I thought that that was um. Patient D.H.: What other part are you talking about? Dr. R.: No dear, no, your breasts, and that was an invitation . . . or an open, you know, "here" and for some reason we were talking about stuff, it's a blank to me. I do not remember . . . if you asked me . . . it was just, I do not remember, um, how exactly everything happened, but it just happened. Patient D.H.: Don't you remember . . . don't you remember putting your hand on my breasts and putting your two fingers in my vagina? Do you remember that? Dr. R.: Yes. Patient D.H.: Yes, you do remember that, right? Dr. R.: Hon, I don't even want to, I don't even want to go there. I don't even want to be going there, because I didn't feel comfortable with that at all. Patient D.H.: How, how do you think I feel? I'm not comfortable at all myself. Dr. Rodriguez later engaged the services of a forensic audio engineer who generated an enhanced audio version of the above-described controlled telephone call. During this call, Detective Wernath's voice can be heard in the background, coaching Patient D.H. through portions of the conversation. The criminal investigation also found that a DNA sample from a buccal swab taken from Dr. Rodriguez matched DNA collected from Patient D.H.'s breast. As Mr. Rhodes testified, the chance of a false positive was less than one in 30 billion. Dr. Rodriguez has admitted the sexual activity, while maintaining that his conduct was invited by Patient D.H.'s actions. Specifically, Dr. Rodriguez testified that he believed that Patient D.H. intentionally made her breast "slip out" of her tank top several times, that it was not an accident. He testified that when he told her that he could see her exposed breast, she responded, "Oh, I don't mind." He testified that Patient D.H. was being flirtatious and, by her provocative actions, was encouraging his behavior. Dr. Rodriguez's testimony that he believed Patient D.H. encouraged his sexual misconduct is supported by his statements directly to Patient D.H. on the recorded call, when he thought no one else was listening, and is credible. But regardless of what Dr. Rodriguez may have perceived, or the degree, if any, to which Patient D.H. was complicit in Dr. Rodriguez's sexual misconduct, her involvement would not excuse his actions. A chiropractor is not free to engage in sexual activity with his patient even if the patient encourages or consents to it. There was scant evidence in the record to suggest that Dr. Rodriguez accepts or understands this professional responsibility. Patient D.H.'s testimony as to Dr. Rodriguez's actions was clear and convincing. Her testimony as to his actions is credited and is confirmed by his own statements in the controlled telephone call and at hearing. Respondent's touching of Patient D.H.'s breasts with his hand and mouth and insertion of his fingers into her vagina constituted engaging in sexual activity with a patient and was sexual misconduct in the practice of chiropractic medicine. Patient D.H. engaged in a civil lawsuit against Dr. Rodriguez. She has since executed a release in that case. Dr. Rodriguez has not previously been subject to disciplinary action by the Board. Dr. Rodriguez credibly testified that he has installed video cameras in the treatment rooms to ensure that there will be no further incidents. He noted that the purpose of these cameras was to protect him. Dr. Rodriguez demonstrated little or no remorse, the focus of his spirited testimony being directed towards the provocative conduct of Patient D.H., not his own inappropriate actions. Revocation or suspension of Dr. Rodriguez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Enrique Rodriguez in violation of section 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 29th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 29th day of March, 2019.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Medical Examiners, is a state agency charged with regulating the practice of medicine pursuant to Section 20.30, Fla. Stat. Respondent, Emilio Yero, M.D., is, and was at all times material to this case, a licensed medical doctor in the State of Florida, having been issued license No. ME 0032320. At all times material hereto, Respondent was employed as a psychiatrist by a health plan provider at 560 Northwest 165 Street Road, Miami, Florida. The health plan, which covered complainant, Denise Gibson, permitted 20 psychotherapy sessions a year. The Patient-Physician Relationship. On January 15, 1982, Ms. Gibson underwent her first psychotherapy session with Respondent, and a patient-physician relationship began. There is substantial conflict between the parties regarding the duration of the patient- physician relationship. The evidence reflects a total of 20 sessions from January 15, 1982 through May 7, 1982. Respondent's progress notes, however, also reflect an office visit on December 14, 1982, following which Respondent made the notation "case closed." Respondent insists that his last session, in accordance with the 20- session limit imposed by the health care plan, was May 7, 1982, and that the patient-physician relationship terminated on that date. He further insists that the visit of December 14, 1982, was an unannounced visit by Ms. Gibson and that he saw her on that date only as a courtesy. Ms. Gibson insists that she made approximately 40 visits to Respondent's office from January 15, 1982 through December, 1982. She states she personally paid for three or four of these visits at the front desk, and, on Respondent's advice, avoided the necessity of paying for further visits by advising the receptionist that her "$100 limit was up." No receipts, cancelled checks, or other documentation was offered at final hearing to substantiate her claim. Hans Steiner, M.D., an expert in psychiatry and psychoanalysis, testified that the patient-physician relationship is primarily a contractual one, to be determined by the agreement of the parties. Dr. Steiner's testimony, therefore, does not help in resolving the conflict in testimony on this issue. The Sexual Activity. While Respondent concedes he had sexual intercourse with Ms. Gibson, their respective testimony is contradictory regarding the date of inception, the duration, and the impetus for their encounter. Respondent testified that he had sexual intercourse with Ms. Gibson on only three or four occasions between the middle or end of June 1982 and October or November 1982. Respondent further testified that there was no petting or sexual activity between Ms. Gibson and him at his office, his condominium, or any other location except the St. Michelle--a hotel located in close proximity to Respondent's condominium in Coral Gables, Florida. Respondent further testified that he did not initiate any sexual advances toward Ms. Gibson but succumbed to her "threats." According to Respondent, Ms. Gibson threatened to complain to the American Psychiatric Association, his employer, the Board of Medical Examiners, and to sue him civilly because of his treatment of her condition. According to Respondent, it was, only because of these "threats" that he succumbed and had sexual intercourse with Ms. Gibson. Ms. Gibson, however, testified that Respondent first made sexual advances towards her at the end of March or early April 1982. At that time, with her permission, Respondent fondled her. Ms. Gibson further testified that she and Respondent first had sexual intercourse the end of May 1982 at her home, during the summer at his office, in August at his condominium, in September or October at the Hotel St. Michelle, and in January 1983 at her apartment. Ms. Gibson gave a detailed description of Respondent's condominium and testified that she received a watch from Respondent as a Christmas present in 1982. Respondent concedes the accuracy of her description of his condominium, but denies her presence there, and surmises that she "extracted" such detailed information from him. Respondent did not deny the gift. According to Ms. Gibson, their relationship progressed from a "spontaneous kiss"--"a peck"--to fondling, to sexual intercourse. She testified she made no threats and that Respondent expressed his desire to have sex with her. According to Ms. Gibson, she was in love with Respondent, and the intimacies were a result of that affection. Ms. Gibson, however, did mail letters to Respondent which could be construed as threats. She insists they were merely expressions of hurt and anger at his lack of acceptance of her. The Self-Interest of the Parties. A resolution of the conflicting testimony is further complicated by the self-interest of Respondent and Ms. Gibson as well as Ms. Gibson's mental state. The self-interest of Respondent in these disciplinary proceedings is apparent. Ms. Gibson's self-interest arises by virtue of a current civil action she has pending in the Circuit Court of Dade County, Florida, wherein she seeks to recover compensatory and punitive damages against the Respondent as a consequence of the intimacies which she alleges occurred during the course of the patient-physician relationship. The complaint Ms. Gibson filed against Respondent with the Hoard of Medical Examiners, and which precipitated the filing of the Administrative Complaint in this action, was filed subsequent to her civil suit. Ms. Gibson's mental condition is another factor. Ms. Gibson has been diagnosed as a borderline personality. According to Dr. Steiner, people with that diagnosis are fragile (have difficulty) in adjusting to reality or emotional situations. Such personalties may become psychotic under stressful and emotional situations, may suffer aggressive infatuation (pursuit) and are very unlikely to improve with treatment. Ms. Gibson's mental state was additionally complicated by the phenomenon known as transference which occurred during her treatment by the Respondent. Transference is a term used to describe the development of strong emotional feelings of a patient toward a psychiatrist, feelings which in the past were attached to other people of significance in her lie. Resolution of the Conflicting Testimony. The evidence is this case is in irreconcilable conflict as to when the patient-physician relationship terminated and when any sexual intercourse commenced. The absence of any evidence to corroborate Ms. Gibson's testimony or to impeach Dr. Yero's testimony further complicates a resolution of the conflict. Therefore, in conformity with Robinson v. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3d DCA 1984), the Hearing Officer finds that the Petitioner has failed to establish the patient- physician relationship extended beyond May 7, 1982, and that any sexual intercourse occurred before the termination of that relationship.
Findings Of Fact At all times relevant hereto Stanley Mark Dratler, M.D., was licensed by the Florida Board of Medical Examiners. He completed a four-year residency in obstetrics and gynecology before opening an office in Dade City, Florida, in 1981. He has taken the written portion of the examination for Board certification but, at the time of the hearing, was not aware of the result of that examination. Patient A visited Respondent July 22, 1982, for a Pap smear which was subsequently followed by a biopsy and hysterectomy on August 18, 1982. Following her release from the hospital, A reported to Respondent's office on August 30, 1982, for her first office checkup following surgery. At this visit Respondent performed a complete physical examination including a pelvic examination, asked A questions regarding her sex life at home, and told her he could show her things that would help her sex life. While examining her and discussing her sex life, Respondent applied a Q-tip to various areas outside the vagina and asked A to describe the sensations created thereby. Some two weeks later A developed back pains, called Respondent's office, and was told to come in the next day. Again, Respondent did a complete examination, including pelvic, used a Q-tip swab to stimulate areas outside the vagina, and told A she needed to know how to masturbate herself and not rely solely upon her husband. During this examination, conducted in an examining room containing only A and Respondent, Respondent masturbated A and had her masturbate herself. When A asked about her back, Respondent told her there was nothing wrong with her back. A denied she ever told Respondent she felt numb between her legs. In Respondent's testimony he confirmed the August 30 visit to his office by A but claimed she complained of feeling numb between the legs. When he put her in the stirrups for an examination, he found nothing wrong externally and performed a psycho-sexual examination which involved the stimulating of sensitive areas around the vagina with a cotton swab. He denies he ever masturbated A; that at her final visit on October 8, 1982, she again complained of numbness between her legs; his examination, which included the touching of sensitive areas, revealed nothing wrong; and when they returned to his office after the examination she made advances toward him. When he told A he treated her like all other patients, she got mad and stormed out of his office. In Exhibit 3, the patient records of A, the October 8 entry indicated only that A came in complaining of some swelling of the lower extremities, and no problem with that was foreseen. That entry states A would not need to return for another visit before six months unless some other problem developed. In view of the significant differences between the medical record and Respondent's testimony, the testimony of A is the more credible. Patient E visited Respondent's office September 29, 1982, complaining of bleeding. During this visit a Pap smear was taken, as was a sexual history of the patient. During the pelvic examination Respondent talked to E of areas to stimulate for sexual arousal. With his finger in her vagina, he started to masturbate her and told her she needed to have more orgasms. E acknowledges telling Respondent she had intercourse five or six time per week and was anxious to get pregnant. She does not recall telling Respondent she reached climax only once per week, that her last climax was one week before the visit, or that she experienced pain on deep thrusting. Following this examination, E was given an appointment to return in two weeks, which she cancelled and did not again return to Respondent's office. Respondent acknowledges that E visited his office as alleged and that he gave her a complete examination including a pelvic exam. He contends the questions regarding her sex history were necessary to ascertain any problems inhibiting E getting pregnant. He denies masturbating E or telling her that masturbation, stimulation, or sexually-oriented conversations were a necessary part of gynecological treatment. Patient B first visited Respondent November 4, 1982, complaining of a rash in the vaginal area. Respondent obtained a sexual history of B, who at the time of this visit was 16 years old. This revealed B's first sexual encounter occurred at age 12, that she had never experienced orgasm although she had been sexually active. During the pelvic examination Respondent applied a cotton swab to various areas around B's vagina and asked her if it felt good here or there. B was given a prescription for the rash and told to return a week later. When she returned on November 8, B again was undressed for an examination. Respondent performed what he described as a psycho- sexual examination on B during which he massaged her breasts, stimulated areas outside the vagina with a cotton swab, and inserted fingers in B's vagina. While this stimulation was going on, B had an orgasm. B had experienced some side effects with the first rash medication and on the second visit Respondent prescribed a different medicine. B returned for a third visit on November 22, 1982, which she testified was for blood tests only. However, there is some disparity in the testimony and it is more likely that the stimulation and orgasm occurred during the visit on November 22 rather than on November 8. On her final visit, December 6, 1982, B was again examined and testified Respondent fondled her breasts while masturbating her. At this time she had commenced her menstrual cycle but Respondent told her that was all right as he could still examine her. At this final visit Respondent prescribed birth control pills for B. Respondent acknowledges that B had visited his office four times as she testified and that he gave her the psycho- sexual examination because she had engaged in sex for four years without enjoying it. His questions regarding her sex life was to find out if the rash was related to a sexually transmitted disease. Respondent denies that he fondled B's breasts or masturbated her. Exhibit 4, the medical history of B, confirms the four visits but contains no reference to the psycho-sexual examination Respondent performed. A return visit scheduled for December 22, 1982, was never kept by B. The testimony of B is more credible than that of Respondent respecting his actions with B while she was being examined. Patricia Cherry worked in Respondent's office as a medical assistant and secretary from July 1982 until January 1983 when she quit to work at Humana Hospital in Dade City. Respondent asked Cherry if she would teach some of his patients how to masturbate themselves. She refused by stating she was not interested. Cherry was told by Respondent that he was conducting a survey on human sexuality and each patient would be a part of that survey. On one occasion Respondent asked Cherry to come in one weekend and he would give her Sodium Pentothal. She declined this also. On one occasion she witnessed Respondent administer intravenously a drug to a patient which Respondent said was Sodium Pentothal. Respondent told Cherry that a patient was coming in to be given Sodium Pentothal and had requested Cherry be present while the drug was administered. The patient came in as scheduled and was administered something intravenously while undressed from the waist down. After the IV started, the patient became unconscious on two occasions. During one period while the patient was awake Respondent asked the patient what she thought about oral sex. During one period the patient was unconscious Respondent asked Cherry if she would sexually stimulate the patient. Cherry said no. Once while a drug salesman was in the office Cherry asked Respondent if he would give her some of the new medicine the salesman was offering for pimples. Respondent told her she should have a pelvic examination to find out if she was through puberty because use of the drug by one not through puberty could cause undesirable side effects. Cherry was 22 to 23 years old at the time, had experienced her menstrual cycle for several years and she declined to be examined. By definition, girls are through puberty when they commence their menstrual cycles. Petitioner's two expert witnesses opined that hands-on masturbation of a patient constitutes treatment below generally prevailing standards; constitutes use of fraud, intimidation, or undue influence on a patient; constitutes exercising influence within a patient-physician relationship for purposes of engaging the patient in sexual activity; and constitutes deceptive, untrue or fraudulent representations in the practice of medicine, or employing a trick or scheme which fails to conform to the minimum acceptable standards of the profession. Also, the use of a swab around the genitalia of a female patient to sexually arouse the patient does not conform to the generally prevailing standards of treatment in the medical community. Nor does the use of Sodium Pentothal on a patient in an out-patient setting comply with the prevailing standards. Sodium Pentothal is a drug not normally administered in an out-patient setting where emergency backup procedures are unavailable. Very few gynecologists are sufficiently trained in the use of this drug to safely administer such a drug to a patient and particularly so in an out-patient setting. Research is normally done in an approved academic environment and not by individual practitioners. Respondent denied that he was engaged in the research he told Ms. Cherry he was conducting. After hearing the testimony of the witnesses, Dr. J. Kell Williams, a Board-certified gynecologist and faculty member at the University of South Florida, opined that Respondent's treatment of the three patients who testified was below acceptable medical standards, constituted use of physician- patient relationships for improper purposes, constituted fraud and deception in the practice of medicine and the employment of a trick or scheme, which fails to comply with the minimum acceptable standards of the medical profession. Patricia Cherry was never a patient of Respondent. As an employee she was requested to instruct female patients in masturbation, which she declined to do. Respondent also suggested to Cherry that she submit to Sodium Pentothal, which she also declined. Likewise, she declined to allow Respondent to do a complete examination which Respondent insisted was necessary before prescribing medication for her acne. Although Cherry was not a patient, the representations regarding a pelvic examination prior to prescribing medication for acne constitutes deceptive, untrue and fraudulent representations in the practice of medicine and fraudulent solicitation of a patient. Absent a medical reason to conduct a pelvic examination, Respondent's insisting on doing so prior to treatment of acne constitutes an attempt to engage the patient in sexual activity.
The Issue When the hearing commenced, the parties through counsel agreed that sufficient facts would be presented to sustain a finding of violations of Counts One, Two, and Three a. and b., within the Administrative Complaint drawn by the State of Florida, Department of Health, Case No. 1999-53281. It was left for the fact finder to portray those facts consistent with the agreement. The parties presented their cases and facts have been found on the record which promote findings of violations of the aforementioned counts. In addition, as envisioned by the parties and accepted by the undersigned, determinations concerning recommended sanctions for the violations have been made on the record presented at hearing.1
Findings Of Fact Respondent's History At all times relevant, Respondent has been licensed as a physician in the State of Florida in accordance with license No. ME:0061141. His practice has been in the field of psychiatry. Respondent is Board-certified in psychiatry. Respondent has a Bachelor's of Science degree from the University of Michigan. He holds a Masters' degree in Clinical Social Work from Tulane University and a Medical Degree from Louisiana State University Medical School. Respondent did a four-year residency at Ochner Foundation Hospital in Psychiatry. Respondent has been married to Brenda Schenthal for 25 years. The Schenthal's have two sons, ages 10 and 12. The family resides in Destin, Florida. Respondent began private practice in the Fort Walton Beach, Florida, area in 1993 with Dr. Victor DeMoya. Respondent was affiliated with that practice when circumstances arose for which he stands accused. Respondent practiced in the group known as Emerald Coast Psychiatric Care, P.A., in Fort Walton Beach, Florida. Respondent does not have a prior disciplinary history with the Board of Medicine. M.B.G. M.B.G. was born July 23, 1981. Respondent first saw M.B.G. on March 21, 1996, when she was 14 years old. M.B.G. presented with issues of uncontrollable behavior, running away from home, anger, rage, drug use, suspected alcohol abuse, and sexual promiscuity. M.B.G. did not have a history of acting out until she was 13 or 14 years old. Respondent had been treating M.B.G. for approximately two months, when in May 1996, M.B.G. was involved in a physical altercation with another student in her school. The evaluation Respondent performed at that time revealed that M.B.G. was extremely angry, presenting sufficient risk that Respondent determined to involuntarily commit M.B.G. to Rivendell Hospital in Fort Walton Beach, Florida. At the time M.B.G. remained hospitalized for a couple of weeks. Following her hospitalization M.B.G. was seen by Dr. Deborah Simkan, an adolescent psychiatrist. Dr. Simkan was associated with Respondent's clinic. M.B.G. remained in treatment with Dr. Simkan until August of 1996. At the time M.B.G. was also being seen by Betty Mason, a mental health counselor affiliated with Respondent's practice. There was some concern about the progress M.B.G. was making under Dr. Simkan's care and the family determined to move M.B.G. from the Fort Walton Beach, Florida, area to live with an aunt in Charleston, South Carolina. M.B.G. had been sent to live with her aunt because M.B.G. was defiant, would not follow the rules in her household, and was difficult to control. After living with her aunt in Charleston, South Carolina, for several months it became apparent that the aunt was unable to control M.B.G. There was some suspicion that M.B.G. was using drugs while residing with her aunt. When M.B.G. returned from Charleston, South Carolina, she ran away from home as she had before. When she was found she was sent to live in a treatment facility in Trenton, Alabama. That facility was Three Springs. The reasons for her placement related to the inability to control her conduct, suspected alcohol abuse, and sexual promiscuity. M.B.G. remained at Three Springs from January 1997 until her return home in April 1998. Her stay in that facility was in accordance with a very structured environment. While at Three Springs M.B.G. revealed for the first time that she had been the victim of sexual abuse by a male YMCA counselor when she was nine years old. As a means to express her feelings, while at Three Springs, M.B.G. was encouraged to write in journals, in that she found writing about her feelings an easier means of expression then verbalizing her feelings. M.B.G. could share or refuse to share the things that she had written in the journals. Upon her release from Three Springs M.B.G. asked that Respondent resume her care. It was anticipated that Respondent would treat M.B.G. for the sexual abuse that had occurred earlier in her life and as a means to transition from the very structured environment at Three Springs into greater freedom she would have living at home. In April 1998, when Respondent again undertook M.B.G.'s care, his response to his duties was initially appropriate. However, upon reflection Respondent questions the decision to undertake the care following his former decision to place M.B.G. in Rivendell Hospital under the Baker Act. In April, M.B.G. was being seen by Respondent in his practice twice a week for one hour each visit. A couple of months later the schedule changed from two one-hour sessions per week to one two-hour session per week. Around August or September 1998, Respondent began to see M.B.G. three or four times a week in his office. By January of 1999, Respondent was seeing M.B.G. almost on a daily basis, not always in his office. Some of the increases in contacts between M.B.G. and the Respondent were associated with group therapy sessions involving M.B.G. and other sexual abuse patients under Respondent's care. One of the persons in the group was considerably older than M.B.G. It was not shown that the inclusion of the older patient in the therapy group was designed to advance some inappropriate purpose in the relationship between Respondent and M.B.G. Nonetheless, Respondent now questions the appropriateness of placing M.B.G. in the group with such divergence in ages among the participants. Upon her return from Three Springs M.B.G. became pregnant as was manifest in May 1998. She informed Respondent of her pregnancy. Reluctant to tell her parents about her condition, M.B.G. expressed the belief that an abortion was a better choice in responding to her pregnancy. Respondent left it to M.B.G. to inform her parents or not concerning the pregnancy. Respondent arranged for M.B.G. to talk to a patient who had gone through a somewhat similar experience. Ultimately M.B.G. told her mother of the pregnancy and the desire to terminate her pregnancy. Her mother was supportive of that choice and arranged for the abortion procedure. Respondent offered to go with M.B.G. and her mother M.G. when the abortion was performed. Respondent now concedes the error in the choice to offer to accompany and the accompaniment of M.B.G. and her mother to the place where the abortion was performed. This was not an appropriate response for a care-giver. Upon her return from Three Springs M.B.G. had a better relationship with her family than before. But the cordiality did not last. Over time their relationship became strained. M.B.G. was especially irritated with her mother. As before, M.B.G. maintained journals upon her return from Three Springs, portions of which she shared with Respondent. M.B.G. considered the journals to be private. Her mother was aware of the issue of privacy. Without permission M.G. read her daughter's journals. Being aware that the mother had read the journals, Respondent brought M.B.G. a safe to help maintain the journals in privacy. This purchase constituted involvement with the patient M.B.G. beyond the provision of appropriate care and into the area of problem solving in which Respondent should not have been involved. Respondent has come to understand that the purchase of the "lock-box" was not an appropriate decision. Another indication that Respondent was deviating from the normal physician-patient expectations in treating M.B.G. occurred in September 1998, in a meeting between M.B.G. and her parents. Rather than maintain his professional objectivity, Respondent sided with the patient M.B.G. in a setting in which the parents were attempting to impose rules and restrictions on her conduct. In retrospect Respondent feels that he should have handled that appointment differently, realizing his conduct indicated that something was going on within him that was not desirable, as evidenced by his starting to side with the patient. In November 1998, in response to one of the therapy sessions Respondent was engaged in with M.B.G., Respondent provided the patient with a can of Spaghettios and a poster board that he sent home with her mother. With these items he wrote a note that indicated that the Spaghettios were a reward for her efforts and he signed the note "your protector" and the name "Steve" in informal reference. As Respondent acknowledges, this was "an indication there was certainly more going on with myself," referring to feelings he was developing for the patient that were not proper conduct for a physician. M.B.G. and her family took a Christmas holiday in 1998. M.B.G. did not enjoy the trip. In explaining the lack of enjoyment, M.B.G. indicated that she did not enjoy spending time with her family on the vacation. Upon the return home M.B.G. went to stay with a friend from school. The friend with whom M.B.G. was staying upon the return from the vacation was being visited by some students from Florida State University. It was decided that M.B.G.'s friend, M.B.G., and those students would go to M.B.G.'s house to play pool. The next morning, M.B.G.'s mother found evidence that beer or other forms of alcohol had been consumed in the basement where the pool table was located. D.G., M.B.G.'s father also saw this evidence. M.G. confronted M.B.G. with the evidence. M.B.G.'s response was to leave her home and return to her friend's home. Later M.B.G. called her home and left a message that she was going to spend the night with her friend. Beyond that point Respondent became aware that M.B.G. and her mother had a disagreement about what had happened in the basement at their home. M.B.G. denied being involved in drinking. Respondent became involved in what he considered to be a stand- off between M.B.G. and her mother concerning terms acceptable for M.B.G.'s return home from her friend's house. As Respondent described it, he was allowing himself to get stuck in between M.B.G. and her mother on this subject. During the time that M.B.G. lived away from her home with the friend, Respondent spoke to M.G. about a contact which M.G. had with Three Springs, in which it was stated that M.B.G. might be returned to that facility or that M.B.G. might possibly be emancipated. Respondent spoke to Dr. Ellen Gandle, a forensic child/adolescent/adult psychiatrist, expressing his feelings of responsibility to help M.B.G. other than in the role of psychiatrist. Dr. Gandle strongly suggested Respondent not abandon his role as psychotherapist in favor of that of guardian for M.B.G. The possible guardianship was another subject that had been discussed with M.G. Respondent also tried to contact Dr. Charles Billings who had been the Respondent's residency director at Ochner to discuss this situation concerning M.B.G. In conversation, Dr. Victor F. DeMoya, Respondent's partner in the practice, advised Respondent that Dr. DeMoya considered it to be a conflict in roles for Respondent to be a therapist to M.B.G. and her guardian and that Respondent should seek the "feedback" of other colleagues about that prospect. Given the schism that existed between M.B.G. and her mother, the mother expressed a reluctance to provide continuing financial support to her daughter, the mother wanted the daughter to return the car the daughter was allowed to drive, and the mother wanted the house keys and credit cards returned. These views were made known to Respondent. Respondent went with a member of M.B.G.'s therapy group to M.B.G.'s home to remove her belongings. This retrieval of the patient's belongings was a boundary violation of conduct expected of a physician. Beyond that point Respondent continued to pursue a course of conduct involving boundary violations in his relationship with M.B.G. While M.B.G. was living with her friend from December 1998 until February 12, 1999, Respondent saw her frequently outside the treatment setting. In these instances Respondent discussed with M.B.G. her living circumstance. Respondent was involved with paying rent to the family of the friend with whom M.B.G. was living. Respondent was involved with shortening M.B.G.'s school day as a means to assist her in getting a job. Respondent helped M.B.G. to fill-out applications for college. Although Respondent had the expectation that M.B.G. would eventually repay the money expended, Respondent and his wife purchased an automobile and gave it to M.B.G. Respondent opened a joint checking account in which M.B.G. had access to monies that had been placed there by Respondent. Respondent provided M.B.G. a pager which was used by Respondent in contacting M.B.G. at her friend's residence after curfew hours that had been imposed by the friend's parents. Sometime around the latter half of January 1999, Respondent became convinced that he was falling in love with M.B.G. He gave expression to these feelings both verbally and in cards that he sent to M.B.G. In addition, Respondent had sexual fantasies about M.B.G. Respondent went so far as to discuss with M.B.G. the possibility of marrying her and the consequences of that choice. Eventually, Respondent made his wife aware of his feelings toward M.B.G. On February 11, 1999, while seated in the car Respondent had purchased for M.B.G., they kissed briefly. On February 12, 1999, M.B.G. and the friend in whose house M.B.G. was living, had an argument and M.B.G. left the home. After leaving she called Respondent early on February 13, 1999. She explained to Respondent that she had left the friend's home and was planning to drive to Tuscaloosa, Alabama. In response Respondent offered to meet M.B.G. They met at a parking lot at a Walgreens store. While seated in the car they talked for a while and kissed. Respondent invited M.B.G. to stay at his residence. She declined. Respondent then offered to get her a hotel room. On February 13, 1999, Respondent paid for a room in a local motel for M.B.G. to use. Respondent carried her belongings into the room. They sat on the bed in the room and talked, kissed, and hugged. In the course of the hugging Respondent placed his hand inside the band of M.B.G.'s sweat pants that she was wearing. Respondent touched M.B.G.'s breast on the outside of her clothing. Respondent then left the lodging and returned home. When at home he explained to his wife what had transpired with M.B.G. Following the encounter on February 13, 1999, in the motel, Respondent discussed the situation involving M.B.G. with his partner in the clinic. His partner told Respondent that Respondent needed help. Respondent contacted Dr. Henry Dohn, an adult psychiatrist practicing in Pensacola, Florida. This visit took place on February 14, 1999. They discussed the situation with M.B.G. An arrangement was made for a return visit which occurred on February 19, 1999. Respondent reports that Dr. Dohn told Respondent that the Respondent was not thinking clearly and needed to stop practicing and to attend to whatever issues needed attention in association with the boundary violation pertaining to M.B.G. Respondent was told by Dr. Dohn that if he did not report himself, Dr. Dohn would make a report concerning the conduct. In turn Respondent called a Dr. Dwyer, the on-call doctor at the Physician's Resource Network. Consistent with the discussion held between Respondent and Dr. Dohn, Respondent determined to admit himself for treatment at the Menninger Clinic in Topeka, Kansas. Respondent was admitted to the clinic on February 22, 1999. He had told his partner Dr. DeMoya that he was going to the clinic. Respondent admitted himself to the Menninger Clinic on a voluntary basis. While under treatment at Menninger Clinic Respondent was cared for by Dr. Richard Irons. Respondent also consulted with Dr. Glenn Gabbard, who specializes in boundary violations. Respondent was treated at the Menninger Clinic from February 22, 1999 through February 24, 1999, on an in-patient basis. He continued his treatment on an out-patient basis from February 24, 1999 until March 19, 1999. Respondent was released from the Menninger Clinic on March 19, 1999, and returned to Florida. Without justification and contrary to appropriate conduct for a physician, especially when recognizing his past indiscretions with M.B.G., Respondent made an arrangement to meet M.B.G. in person. This was contrary to any of the advise he had been given either medical or legal. While it had been suggested that Respondent offer assistance in placing M.B.G. in therapy with another care-giver, it was not contemplated that the arrangements would be made in person. Moreover, Respondent had a more expansive agenda in mind when meeting M.B.G., beyond acknowledging his responsibility for what had transpired between them, the offer to assist in finding a therapist and the possibility of paying for the therapy. Broadly stated, Respondent believed at that point-in-time that he could "fix things between them." Respondent was unaware that M.B.G. had contacted the authorities after their encounter in the motel room and complained about his conduct. She agreed to assist the authorities in investigating Respondent, to include taping telephone conversations between M.B.G. and Respondent while he was in Topeka, Kansas, undergoing treatment and upon his return. As well, M.B.G. was wearing a transmitter when she met Respondent in a park in Fort Walton Beach, Florida, on March 22, 1999, that would allow the authorities to record the meeting. The meeting was also video-taped. When the meeting concluded Respondent was arrested by Okaloosa County, Florida, Sheriff's deputies upon charges of battery, attempted sexual misconduct by a psychotherapist and interference with child custody. As a consequence, Respondent was charged in State of Florida vs. Stephen Schenthal, in the Circuit Court of Okaloosa County, Florida, Case No. 99-497-CFA. The case was disposed of by entry of a plea of nolo contendere to Count One: attempted interference in custody, Count Two: attempted sexual misconduct by a psychotherapist. In response an order was entered by the Court withholding the adjudication of guilt and placing defendant on probation on September 2, 1999. Respondent was placed on probation for a period of two years under terms set forth in the court order. These criminal offenses relate to the practice of medicine or the ability to practice medicine. In his testimony Respondent acknowledged that he committed boundary violations with M.B.G. that are depicted in the fact finding. Whether Respondent recognized the damage he was causing while he was engaged in the misconduct, he does not deny that he violated the fiduciary relationship with his patient by betraying M.B.G.'s trust and participating in the re- traumaterzation of her past. No independent evidence from a person treating the patient was presented concerning M.B.G.'s mental health following Respondent's transgressions. But Respondent recognizes the potential for significant damage to his patient by making it hard for M.B.G. to trust other physicians, therapists, authority figures, or to trust relationships in general and the possible re-enforcement of the trauma that had occurred in her childhood. Dr. Peter A. Szmurlo, a psychiatrist who practices in Florida, was called upon to review the circumstances concerning Respondent's relationship with M.B.G. Dr. Szmurlo has not had the opportunity to examine M.B.G. However, in a report dated November 1, 2000, concerning Respondent's actions, Dr. Szmurlo stated, "I believe that the patient's relationship with Dr. Schenthal was nothing but destructive and may preclude her ability to ever be able to develop a trusting relationship with another male and/or with another psychotherapist." In his deposition Dr. Szmurlo expressed the opinion that the issue of potential harm to M.B.G. was clear and that the potential harm was in association with "further undermining of the patient's sense of safety and, therefore enhancing or recreating the original trauma (assuming it really occurred), and that's the sexual trauma which occurred in early years." Dr. Joel Ziegler Klass, practices psychiatry in Florida. Dr. Klass reviewed information concerning Respondent's relationship with M.B.G. Dr. Klass did not personally assess M.B.G., however, within his knowledge of the facts concerning the relationship between Respondent and M.B.G. and the patient's prior history; Dr. Klass did not think a lot of damage had been done by Respondent to M.B.G. He did express the opinion that M.B.G. lost out on valuable time to get help for her mental health based upon Respondent's indiscretion. As of November 27, 2000, when M.B.G. gave her deposition, she was attending the University of Alabama in Tuscaloosa, Alabama. She explained that she had been seen by a mental health care provider, Dr. Carol Ware, a psychologist in Tuscaloosa, Alabama. The purpose for seeing Dr. Ware was basically pertaining to "things that had happened with Dr. Schenthal." M.B.G. last saw Dr. Ware in July or August 2000. M.B.G. expressed an interest in seeing a psychiatrist and indicated that she had called three different doctors. She wishes to see a female psychiatrist and she understands that only one or two female psychiatrists were practicing in Tuscaloosa when she inquired. She provided information to facilitate being seen by one of those psychiatrists but has not heard back from either practitioner concerning their willingness to treat M.B.G. In her deposition M.B.G. expressed the feeling of depression "just ups and downs and it comes as fast as it goes and it’s getting a lot worse and I need somebody to help me with it." Dr. Szmurlo expressed the opinion, within a reasonable degree of medical certainty, that Respondent used information gathered from the physician/patient relationship during the therapeutic sessions to establish trust and exercise influence over M.B.G. thereby engaging in a course of conduct for purposes of engaging a patient in a sexual relationship. That opinion is accepted. Dr. Szmurlo also expressed the opinion, within a reasonable degree of medical certainty, that Respondent in his treatment of M.B.G. practiced medicine with a level of care, skill, and treatment, which would not be recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. That opinion is accepted. Respondent: Diagnosis, Care, and Practice Opportunities Respondent returned to the Menninger Clinic on March 29, 1999, and was seen on an in-patient basis until May 14, 1999. Dr. Richard Irons was Respondent's principal treating physician at the Menninger Clinic. Upon his release from the Menninger Clinic, Respondent has been routinely treated by Dr. Roberta Schaffner, who practices psychiatry in Pensacola, Florida. Her treatment began July 9, 1999, and was continuing upon the hearing dates. Her treatment involves psychotherapy and the use of medications. As Dr. Schaffner explained in correspondence to counsel for Respondent, Dr. Schaffner's treatment does not involve the role of making specific recommendations about the timing and details of Respondent's possible return to practice. The treatment provided by Dr. Schaffner was in agreement with the treatment plan from the Menninger Clinic and was discussed with Dr. Irons and Dr. Gabbard who had cared for Respondent at the Menninger Clinic. Dr. Schaffner does not oppose the recommendations of Dr. Barbara Stein, a psychiatrist who has evaluated Respondent concerning his fitness to return to practice and under what circumstances. With this knowledge, Dr. Schaffner has indicated that were she persuaded that the suggestions by Dr. Stein for restrictions on Respondent's possible return to practice were ideas that were dangerous or inappropriate, Dr. Schaffner would be active in expressing her opposition, recognizing Respondent's difficulties. This is taken to mean recognizing Respondent's underlying mental health which needs attention. As Dr. Klass explained in his testimony, Respondent's present physician Dr. Schaffner would not offer her specific observations concerning Respondent in the interest of maintaining the physician/patient relationship. Using the diagnostic criteria in DSM-IV, Mental Disorders, Dr. Irons identified Respondent's condition as follows: Axis I: 296.22 Major depressive episode, single, in full remission V. 62.2 Occupational problem associated with professional sexual misconduct Axis II: 301.9 Personality disorder NOS, a mixed personality disorder with narcissistic, histrionic, compulsive and dependent features. Dr. Irons expressed this diagnosis in correspondence dated March 24, 2000, directed to Dr. Raymond M. Pomm, Medical Director for the Physician's Resource Network. In addition to the prior treatment described, Dr. Irons has seen Respondent for internal review of Respondent's progress and rehabilitation. On November 29 and 30, and December 1, 1999, Dr. Irons noted that: The patient continued to show progress and understanding in appreciating boundary- related issues, as well as problems of potential vulnerability associated with professional re-entry. The patient shows incremental improvement in understanding dynamics of boundary violations and appears to have gained some insight into the nature of his own transgressions. I concur with opinions presented by Dr. Schaffner, as well as Dr. Gabbard that ongoing and continuing work should be strongly encouraged. Collectively, Dr. Gabbard, Dr. Schaffner, and myself believe that this individual has the potential to practice psychiatry but only with the use of a carefully structured and monitored professional re-entry program. view: We would support professional re-entry into a psychiatric practice that involves males and females if the site provided for direct supervision with regular reports to appropriate regulatory authorities in Florida. In the correspondence Dr. Irons went on to express his It is my professional opinion with a reasonable degree of medical certainty that Steven Schenthal has made sufficient progress to be able to return to the practice of psychiatry with reasonable skill and safety on the following conditions: The patient will return to practice serving an all-male population. The patient will not serve females professionally under any circumstances. Dr. Schenthal will not engage in marital therapy or couples therapy or work with groups involving males and females. Dr. Schenthal will engage in a program that will involve monitoring of his practice through a sexual boundary violation contract with the Physicians Recovery Network. The patient will enact practice modifications which include appointments only during office hours with support staff in attendance, limitation of office hours to 8 a.m. to 5 p.m., office policies and office practice to be monitored by a psychiatrist agreeable to Dr. Schenthal and the Physician Resource Network, ongoing individual psychotherapy with Roberta Schafner, [sic] M.D., twice weekly at this time and a frequency agreeable to Dr. Schafner [sic] and other concerns [sic] parties. The patient will practice in an office which includes other therapists if not other physicians, and will arrange for clinical supervision with the supervisor having regular contact with Roberta Schafner [sic]. Dr. Barbara N. Stein, is Board-certified in psychiatry and practices in Florida. She was requested by Respondent to provide a second opinion on what parameters would allow Respondent to practice medicine with reasonable skill and with safety to patients. Reportedly, this request was made by Respondent who was dissatisfied with Dr. Irons' recommendations concerning the circumstances under which Respondent might return to practice. Based upon a review of the history of Respondent and the treatment provided to M.B.G. and an interview conducted on August 22, 2000, Dr. Stein concluded that Respondent suffers from Major Depressive Disorder, Single Episode, without psychotic features, Mild DSM-IV 296.21; Dysthymic Disorder, DSM- IV 300.4; and that there is evidence that Respondent suffers from personality disorder, not otherwise specified with narcissistic, histrionic, and anti-social personality traits, DSM-IV 301.9. In her report Dr. Stein went on to express her opinion on how Respondent can practice medicine with reasonable skill and safety to patients and stated that within her opinion with reasonable medical certainty Respondent can practice safely as long as certain restrictions were in place to include: Dr. Schenthal continues at least weekly (and preferably twice a week) therapy as recommended with Dr. Schaffner. Dr. Schenthal continues in weekly PRN Caduceus group. Dr. Schenthal continues to have regular, indirect physician monitoring of his cases directed by the Board. Dr. Schenthal works only in an institutional or group practice setting and does not treat (with psychotherapy) any female patients under 30 for at least two years or until which time he is deemed safe to do so. Dr. Schenthal may do medication management with females under 30 if and only if he has a licensed female health care worker in the room at all times and he does not have any call responsibilities that would cause him to treat these patients after hours without a chaperone. He should not ever treat female adolescents again. Dr. Schenthal takes a series of professional boundary/risk management courses on an annual basis. Patient survey and physician survey forms are employed quarterly and results are satisfactory. Dr. Schenthal has appointments only during regular office hours. Dr. Schenthal continues taking his antidepressant medication until his depressive symptoms have remitted for a minimum of six months and/or Dr. Schaffner recommends discontinuation. Dr. Schenthal and his wife participate in marital therapy if recommended by Dr. Schaffner. Dr. Schenthal is fully compliant with the above and with his long-term PRN contract. With the above recommendations for continued rehabilitation, supervision and monitoring in place, it is my medical opinion that Dr. Schenthal can begin his re-entry into professional practice with the reasonable skills and safety to patients. Dr. Raymond M. Pomm is a psychiatrist. He is the Medical Director of the Physician's Resource Network. Dr. Pomm was aware of Dr. Stein's findings concerning Respondent when Dr. Pomm prepared his own report on October 27, 2000. Based upon Dr. Stein's evaluation, Dr. Pomm's knowledge of the case and with the recognition that restrictions on Respondent's return to practice would be monitored by the Physician's Resource Network, in part and by the Agency for Health Care Administration otherwise, Dr. Pomm described the nature of restrictions he would recommend, should Respondent be allowed to return to practice. They were as follows: Dr. Schenthal should continue at least weekly psychotherapy. This will be a requirement of his PRN contract. Dr. Schenthal should continue his weekly PRN Caduceus group. This also will be a part of his PRN contract. Dr. Schenthal should have indirect physician supervision. This supervision would entail Dr. Schenthal meeting with a physician who is Board-Certified in his specific specialty of Psychiatry on a monthly basis. Each visit will require the supervisor to review with Dr. Schenthal a randomly selected ten percent of Dr. Schenthal's charts pertaining to his treatment of female patients. Therefore, every quarter, a minimum of thirty percent of his charts should have been reviewed. The review would be looking at the appropriateness of evaluative techniques used, therapeutic and psychotropic medication management issues, as well as, countertransferential issues. Also, this review will determine the appropriateness of the ongoing treatment plan and Dr. Schenthal's follow-up with said treatment plan. Dr. Schenthal should only work in an institutional or group practice setting. Dr. Schenthal should not treat any female patient under thirty years of age with psychotherapy for at least two years, and until such time he is deemed safe to do so. Dr. Schenthal may do medication management with females under thirty years of age, if an only, if, he has a licensed female health care worker in the room at all times. Dr. Schenthal should never have any call responsibilities that would cause him to treat the restricted population after hours without a chaperone. Dr. Schenthal should never treat female adolescent patients again (any female patients under twenty-one years of age). Dr. Schenthal should receive annual CME credits in boundary violation and risk management. Patient survey forms, which will be supplied by PRN, should be distributed to his patients by his office manager for one entire week every quarter. These completed forms would then be sent to his indirect physician supervisor for review. Dr. Schenthal should only have appointments with patients during regular office hours. Dr. Schenthal should continue to see his psychiatrist on a regular basis as required by his PRN monitoring contract. Dr. Schenthal will be required to inform his office staff of the difficulties he is experiencing, the terms of his agreement with the Agency for Health Care Administration, as well as, the terms of his agreement with his PRN contract and give his staff the PRN phone number. The tenure of the PRN contract will be license-long. Dr. Klass was called upon by Respondent to offer an opinion concerning Respondent's conduct, in relation to the care Respondent provided M.B.G. After familiarizing himself with the circumstances, to include the reports of Dr. Schaffner concerning treatment provided Respondent and the forensic psychiatric examination performed by Dr. Stein, Dr. Klass arrived at his opinion concerning Respondent's status. Dr. Klass also spoke to Dr. Schaffner by telephone concerning her opinion and attitudes about Respondent. Implicit in Respondent's request was the intent that Dr. Klass speak to the issue of Respondent's future opportunities to practice and under what conditions. In arriving at his conclusions Dr. Klass performed an assessment of Respondent. Dr. Klass expressed the opinion that if Respondent were allowed to return to practice, Respondent could do so acceptably if the following restrictions were in place: 1) No treatment of a female patient younger than 21 years of age until Respondent completes his therapy, as attested to by two sources, one of whom is his treating psychiatrist and the other psychiatrist who is selected; 2) Supervision of all female cases not just young females; Respondent would have to take the charts of his female patients to a qualified Board-certified expert and go over those cases so that it can be determined whether Respondent is significantly affected by his problem in that it is not resolved; 3) Marriage counseling; 4) Participation in group therapy; 5) Medication as necessary; 6) Urine checks that Respondent would have to consent to on an unscheduled basis to determine if he is taking prescribed medication; 7) Further psychiatric/psychological testing if deemed necessary by treating therapists or the Board of Medicine; 8) Literature review on the subject of countertransferance which was in evidence in Respondent's conduct directed to M.B.G.; 9) No patients seen before 8:00 a.m. or after 6:00 p.m.; 10) Contact with Physician's Resource Network professionals who have similar problems to those experienced by Respondent; 11) Allowing assessment by a third- party through a psychological or psychiatric evaluation; Allowing communication with female consenting patients concerning limited questions about their therapy; and Maintaining a "dream journal." With these restrictions in mind, Dr. Klass believes, within a reasonable degree of medical probability, that Respondent could practice psychiatry safely. The restrictions which the physicians have recommended recognize that Respondent has yet to achieve a level of improvement in his condition that would not require close monitoring of his practice and their belief that he not be allowed to treat young female patients. These opinions are held while recognizing Respondent's improvement and willingness to continue with treatment. The opinions concerning restrictions on practice are accepted as well informed and meaningful. Dr. Madison Haire is a practicing internist and nephrologist in Fort Walton Beach, Florida. In the past, Dr. Haire referred patients to Respondent and was persuaded that Respondent provided those patients with excellent supervision, monitoring, and care, prior to the incident with forms the basis for this case. Dr. Haire was unaware of any complaints against Respondent. Dr. Patricia Harrison is a Board Certified psychiatrist who is practicing in the Fort Walton Beach area and has had the opportunity to observe Respondent in the performance of his duties. Dr. Harrison has observed that Respondent exercised professionalism and good judgment in rendering good care and treatment to his patients, aside from the present case. Other physicians have offered favorable opinions concerning Respondent's practice as evidenced in Respondent's Exhibit No. 8.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes the following penalties: Count One: Imposition of a $5,000.00 administrative fine; Count Two: A suspension of one year from the date upon which the final order is entered; Count Three: Placement of Respondent on two years probation following the service of his suspension, subject to such conditions as the Board may specify and restriction of Respondent's practice consistent with those recommendations that have been made by the treatment specialists, as deemed appropriate. DONE AND ENTERED this 15th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2001.
The Issue Whether Respondent violated Subsections 458.331(1)(j), 458.331(1)(t), and 458.331(1)(x), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to these proceedings Dr. Malave was a licensed physician in the state of Florida, having been issued license number ME 0058695. Patient J.P. first started treating with Dr. Malave in September 1994. She has suffered from various mental illnesses since her childhood. As a child, she was physically and sexually abused by her father and her uncles and began to experience episodes of "lost time" in which she would black out and be unable to recall events which had occurred. These occurrences of "lost time" continued into her adulthood. Patient J.P. has also suffered from severe depression for the majority of her life. In November 1982, she attempted suicide two times and was hospitalized for those attempts, but did not receive any outpatient counseling for the depression following her release from the hospital. In addition to experiencing "lost time" and being depressed, patient J.P. also was bulimic. In 1988, she met R.P. who was a postmaster at the post office where she worked in Imperial Beach, California. She was experiencing "lost time" during her delivery of mail. R.P. referred her to a mental health counselor for her depression and work-related stress. The counselor referred patient J.P. to a psychiatrist, who prescribed anti-depressants and anti-anxiety medications for her. During the same period of time, patient J.P. received treatment for bulimia, including two weeks of inpatient treatment at the Alvaredo Parkway Institute. Patient J.P. married R.P. in 1989 and moved to Florida in 1990. During the first four years that patient J.P. lived in Florida, she was treated by several different physicians for depression and bulimia. In 1992, patient J.P. became the patient of Dr. Phillip Sinaicin, who also treated her for bulimia and depression. He tried different combinations of medications and electroconvulsive therapy, but the treatments were not working. Dr. Sinaicin referred patient J.P. to Dr. Malave, a psychiatrist, for a second opinion. Patient J.P. saw Dr. Malave on September 4, 1994, for a second opinion evaluation. Dr. Malave diagnosed patient J.P. as suffering from Dissociative Identity Disorder (DID), formerly known as multiple personality disorder and as having schizoaffective features. Patient J.P. has multiple distinct personalities or voices, as patient J.P. refers to them. She has a core or birth personality, which appears as J.P. She has other personalities including the following: Bridget, who is sexually preoccupied; Vanessa, who appears with a street- smart vocabulary and manifests when she believes that she needs to take charge of a situation which patient J.P. is not handling very well; Monica, who is a mothering personality to Bridget; Elaine, who is the leader of the group of personalities; Delilah Servano, who is also known as the researcher; and the Brother, who is a street-smart male. J.P., the core personality, is unable to recall and relate when an alter personality is manifesting itself. When another personality takes over, patient J.P. describes the experience as "losing time." The other personalities are sometimes aware of each other and of what happens to each other. The personality Elaine is aware of what all of the other personalities are doing. While being treated by Dr. Malave, patient J.P. disclosed to him that she had been sexually abused by her father and her uncles when she was a child. Dr. Malave explored the sexual abuse by using mental regression exercises which were intended to help patient J.P. remember the abuse. Patient J.P. noticed that she was losing time during her sessions with Dr. Malave, and that it mostly occurred while they were doing the regression exercises. During their treatment sessions, Dr. Malave emphasized to patient J.P. that it was important for her to trust him in order for her to get better. Patient J.P. did come to trust him and believed that as long as she continued to see him that she would be all right. In 1995, patient J.P. began to notice that after some sessions with Dr. Malave when she had lost time that her underwear would be wet and sometimes her jaw would be sore and cramped. On these occasions, Dr. Malave would not escort her out of his office as he normally did after a session. On several occasions when patient J.P. had lost time during a session, she recalled coming back to herself as J.P., the core personality, while she and Dr. Malave were engaged in a sexual act. The first occasion occurred around Christmas in 1995. Patient J.P. lost time and came back to herself during a session and found herself kneeling in front of Dr. Malave performing oral sex on him in his office. She lost time shortly thereafter. Patient J.P. recalled another occasion when she came back to herself during a session and found Dr. Malave sucking on her left breast and kissing her neck and face. Another time during a session, Dr. Malave asked patient J.P., while she was in her core personality state, if she were Bridget. Patient J.P. replied that she was. Dr. Malave went to his office door and locked it and then engaged patient J.P. in sex on his desk. On a fourth occasion, patient J.P. came to herself and found herself lying on the floor in Dr. Malave's office and having sexual intercourse with him. Following that session, patient J.P. experienced vaginal soreness and noticed that her underwear was wet when she left his office. She decided to save the wet underwear and stored it under her bed. Until June 1999, patient J.P. continued to save her wet underwear and place them under her bed after sessions with Dr. Malave when she suspected that sex may have occurred during the session. In June 1999, she placed the underwear in a safe deposit box along with a note explaining her relationship with Dr. Malave. The last time that patient J.P. came back to herself while having sex with Dr. Malave was in August 1999. At that time she found herself having sex with Dr. Malave in his chair in his office. Patient J.P.'s husband noticed that at times something was not right about patient J.P. following her sessions with Dr. Malave. Sometimes when patient J.P. exited Dr. Malave's office, her husband noticed that her hair was disheveled, her blouse was undone, her lipstick was smeared, and her skirt was wrinkled. When he asked patient J.P. what had happened, she told him that she had lost time during the session. Patient J.P.'s husband asked for an explanation from Dr. Malave, who told him that patient J.P. had changed personalities during the session and caused her appearance to become disheveled. Dr. Malave further advised that it was good that she was in session when it happened because patient J.P. would be safe with him. Dr. Malave spoke with patient J.P.'s husband on numerous occasions concerning the diagnosis of DID. During one of their conversations, Dr. Malave told the husband that he had treated another woman with DID and that she had a sexually aggressive personality similar to patient J.P.'s personality Bridget. Dr. Malave advised the husband to keep patient J.P. away from men and to try to keep her at home because she just wanted to have sex. In August 1999, patient J.P. contacted attorney Linda Schwictenberg concerning her suspicions about Dr. Malave having sex with her during their treatment sessions. From August to October 1999, patient J.P. turned over a total of ten pairs of underwear to Ms. Schwictenberg. Patient J.P. kept one pair of underwear in her safety deposit box for security reasons. Ms. Schwictenberg sent the underwear in three separate submissions to Lab Corp, a forensic laboratory in North Carolina for DNA analysis. Ms. Schwictenberg, on instructions from Lab Corp, took an oral swab from patient J.P. and sent that specimen to Lab Corp. From the time Ms. Schwictenberg received the panties until she forwarded them to Lab Corp, the panties remained in a drawer in her office to which only she had access. Lab Corp received the submissions and performed a presumptive test to determine whether seminal fluid was present on the first three pair of panties that were submitted. A cutting was taken from one pair of ivory colored panties, the presumptive test revealed the presence of semen. Two black pairs were tested by rubbing filter paper on the panties. The presumptive tests for the two black pairs failed to reveal semen. Lab Corp did a DNA analysis on the remaining seven pairs of panties. DNA is the genetic blueprint of our lives and contains the codes for every physical characteristic and every chemical reaction which takes place in our bodies. With the exception of identical siblings, each person's DNA is unique. Nuclear DNA is inherited in equal portions from our mothers and fathers. DNA is used in forensic cases to determine the identity of a DNA sample. Certain areas of the DNA molecule are different in the general population. These differences are used to develop a profile for a particular sample which is then compared to a profile of a known reference sample in order to determine whether the profiles are similar or different. In cases where sexual misconduct is involved and where there may be two different sources of DNA (the victim and the suspect), a differential extraction is performed. The purpose is to separate the DNA of the sperm source from the DNA of the non-sperm source so that a pure DNA profile for each will be obtained. Lab Corp determined that the DNA profile from the oral swab submitted by patient J.P. could not be excluded as being the source of the non-sperm DNA in all of the panties except one in which a non-sperm fraction was not obtained. The profile developed for the sperm fraction is the same profile developed on the seven pairs of panties on which sperm was detected. In other words, only one sperm donor was detected. Lab Corp did not have a reference specimen from Dr. Malave to make a comparison of the sperm DNA found in the panties. It is possible to transfer the DNA of the sperm fraction from one article of clothing to another. The transference could be done by rubbing the two articles of clothing together or by wetting the article containing the sperm and rubbing it against the other article of clothing. Based on the credible testimony of Meghan Clement, an expert in DNA identification and analysis and in forensic science, the concentrations of DNA in the sperm fraction were too high to have resulted from the sperm having been transferred from another article of clothing to patient J.P.'s panties. On January 6, 2000, Ms. Schwictenberg received the panties from Lab Corp. She gave some of the panties to Investigator John Eckerson of the Volusia County Sheriff's Office. On January 20, 2000, Dr. Malave gave a blood sample to the sheriff's office. Investigator Eckerson sent three pairs of patient J.P.'s panties and Dr. Malave's blood sample to the Florida Department of Law Enforcement (FDLE) laboratory for DNA analysis in January 2000. FDLE personnel made a staincard from Dr. Malave's blood sample. The FDLE testing revealed that there was the possible presence of semen on one of the pairs of panties and no indications of semen present on the other two pairs sent in January 2000. A crime laboratory analyst for FDLE packaged a cutting of the panties containing semen for a later DNA analysis. On February 3, 2000, patient J.P. went to the Rape Crisis Center in Daytona Beach, Florida, where a blood sample was taken from her by a registered nurse. The nurse turned the blood sample over to Deputy Wichman, who also took custody of a pair of panties from patient J.P. Deputy Wichman transported the blood sample and the pair of panties to the sheriff's office, where he placed them in an evidence locker. Patient J.P.'s blood sample was sent to the FDLE laboratory, where a staincard was prepared. On June 20, 2000, Investigator Eckerson took custody of the remaining pairs of panties from Ms. Schwictenberg. Those panties were sent to FDLE for testing. The presence of semen containing spermatozoa was found on four of the pairs of panties submitted in June. A crime laboratory analyst for FDLE prepared cuttings of the four pairs of panties and sent them to another crime laboratory analyst at FDLE for DNA analysis. Timothy Petree, a crime laboratory analyst in the DNA section of the FDLE laboratory, performed a DNA analysis on the blood samples from Dr. Malave and patient J.P. and the five pairs of panties in which semen was found. He first performed a differential extraction of the cuttings which enabled him to separate the sperm cell DNA from any epithelial or skin cell DNA. The next steps include determining how much human DNA was present, setting up the PCR reaction which makes copies of the target DNA segments, and then performing a DNA analysis to determine which DNA fragments were present in the samples. Mr. Petree developed a DNA profile for each of the blood samples and the sperm cells on each of the underwear cuttings. The DNA profile developed from the sperm cells on all five of the underwear cuttings were the same, meaning that there was one sperm donor. The sperm cell DNA profile was compared to the DNA profile developed from Dr. Malave's blood sample. The sperm cell DNA profile matched Dr. Malave's DNA profile at all 14 DNA locations that were compared. The frequency of occurrence of that profile in different populations is as follows: one in 19 quadrillion Caucasians, one in 290 quadrillion African Americans, and one in 13 quadrillion Hispanics. Based on the evidence presented, the sperm found in patient J.P.'s panties came from Dr. Malave. Dr. Malave testified that between January and June 1999, he lost approximately 63 pounds. He further testified that as his underwear would become too large that he would use them to clean up after sexual activity with his wife and discard the underwear in the garbage. It would appear that Respondent's testimony on this subject would be for the inference that somehow the semen that may have been present in his underwear in the garbage was transferred to patient J.P.'s panties, thereby explaining how his semen was found on her underwear. Such an inference is not credible, particularly given the testimony of Meghan Clement that the concentration of sperm present on some of patient J.P.'s panties was too concentrated to have been transferred from another article of clothing. The relationship between a physician and a patient is a sacred trust. The doctor's duties to the patient are to do no harm to the patient and to practice with the greatest diligence to serve the patient's best interest. In this private and confidential relationship, the psychiatrist explores the patient's problems by discussing very intimate thoughts and feelings. Given the level of emotional intimacy in the patient-psychiatrist relationship, the patient sometimes develops sexual feelings toward the psychiatrist, and the psychiatrist sometimes develops sexual feelings toward the patient. These reactions are known as transference and counter-transference, respectively. The psychiatrist has the obligation to recognize the physical and verbal signs of transference in the therapeutic relationship and make sure that the strict sexual boundaries in the relationship are not violated. The personality known as Bridget and Dr. Malave developed sexual feelings toward one another, and it was the responsibility of Dr. Malave to ensure that those feelings did not result in sexual relations between them. Sexual relations between the psychiatrist and the patient are forbidden. Sex within the patient-psychiatrist relationship is very destructive in the therapeutic process and can result in the patient experiencing feelings of guilt, mistrust, and low-self esteem--all of which are counter- therapeutic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Ronald Malave, M.D., violated Subsections 458.331(1)(j), (t), and (x), Florida Statutes, revoking his license to practice medicine, and assessing the costs of the investigation and prosecution of the case against him. DONE AND ENTERED this 21st day of August, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 August, 2002. COPIES FURNISHED: Robert C. Byerts, Esquire Department of Health 4052 Bald Cypress Way, BIN C65 Tallahassee, Florida 32399-3265 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon 106 East College Avenue, Suite 1200 Post Office Box 1877 Tallahassee, Florida 32302-1877 David P. Hill, Esquire 128 East Livingston Street Orlando, Florida 32801 Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Chandler R. Muller, Esquire 1150 Louisiana Avenue, Suite 2 Post Office Box 2128 Winter Park, Florida 32790-2128 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the allegations set forth in the First Corrected Amended Administrative Complaint filed by the Department of Health (Petitioner) against Deshon A. Davis, CNA (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing assistance. At all times material to this case, the Respondent was licensed as a CNA in the State of Florida, holding license no. CNA 274735. At all times material to this case, the Respondent was employed as a CNA by Health First Cape Canaveral Hospital (hereinafter “Hospital”) in Cocoa Beach, Florida. On April 23, 2014, Patient K.H. (hereinafter “patient”) was admitted to the Hospital. The patient was discharged from the Hospital on May 1, 2014. During the time the patient was admitted to the Hospital, he was able to speak; able to get out of his bed and exit the room; and able to use the bathroom without assistance. On April 25, 2014, the patient contacted Hospital authorities and reported that on the two previous days, the Respondent had committed sexual misconduct. At the hearing, the patient testified that on April 23, 2014, the Respondent entered the room and stated that he needed to bathe the patient. The Respondent testified that the patient had soiled his clothing, and that he entered the room to remove the clothing, clean the patient, and provide fresh clothing to the patient. At the time, the patient was in a semi-private room, with another patient in the other bed. The Respondent pulled the privacy curtain around the patient’s bed to separate the beds and to shield the patient from view. The patient testified that the Respondent removed the patient’s clothing, applied an unidentified lotion to the patient’s penis, and roughly manipulated the patient’s penis in a masturbatory manner for at least five minutes until the patient ejaculated. The patient testified that the Respondent then exited the room, leaving the patient to wipe off the ejaculate. Although the patient testified that he requested that the Respondent cease the manipulation, the patient made no apparent effort to get out of the bed or to contact anyone for assistance during the alleged event. The Respondent denied that he applied a lotion to the patient’s penis or that any sexual contact occurred on April 23, 2014. The Respondent testified that while he was cleaning the patient, he observed a “rash” on the patient’s thigh, and that he applied a “barrier cream” to the rash. Although the Respondent testified that he informed the Hospital nursing staff about the rash on April 23, 2014, the registered nurses assigned to care for the patient testified that they had no recollection that the Respondent advised them that the patient had a rash. The patient’s medical records contain no documentation of a rash or of the application of any medication related to a rash. No nurse approved or directed the application of any substance to the patient for a rash. The patient testified that the second incident occurred on or about April 24, 2014. Although the patient had been moved to another semi-private room, only the Respondent and the patient were present in the room at the time of the alleged event. The patient testified that the Respondent entered the room, made a comment about the patient “bringing in rashes,” exposed the patient’s genital area, and then again, after applying a lotion to his penis, roughly manipulated the patient’s penis in a masturbatory manner for approximately ten minutes until the patient ejaculated. The patient testified that the Respondent left the room, and the patient had to again clean himself. Again, although the patient testified that he asked the Respondent to cease the sexual manipulation, the patient made no apparent effort to get out of the bed or to contact anyone for assistance. The Respondent denied the alleged sexual contact. The Respondent testified that he entered the patient’s room because the patient’s “call light” was on. The Respondent testified he heard the patient say “ouch” while using a plastic urinal. The Respondent testified that he thereafter observed a “cut” on the patient’s penis. He also testified that the thigh rash was still visible. The Respondent suggested that abrasions caused by plastic urinals are not uncommon. There is no credible evidence that the patient’s penis was injured on April 24, 2014, whether by a plastic urinal or otherwise. The Respondent testified that after he obtained the patient’s consent, he applied the “barrier cream” to the patient’s penis and thigh. There is no evidence that the Respondent advised the Hospital nursing staff about any injury to the patient’s penis. The patient’s medical records contain no documentation of a wound or abrasion on the patient’s penis or of a rash on his thigh. No nurse approved or directed the application of any substance to the patient for a wound or a rash. On April 25, 2014, the patient contacted Hospital authorities and reported the alleged sexual improprieties. The patient’s medical records indicate that from the time of the patient’s Hospital admission on April 23, 2014, until April 25, 2014, the patient had been resting and calm. According to the Hospital’s representatives who spoke to the patient on April 25, 2014, he was emotional and “very distraught” while describing the alleged activities. A physical examination of the patient was conducted on April 25, 2014, during which no visible rash on the thigh or injury to the penis was observed. According to the expert testimony of Lynda Tiefel, R.N., a CNA must report the presence of a wound or a rash on a patient to a registered nurse. It is the responsibility of the registered nurse to assess the condition and determine whether a physician referral should occur. Other than reporting the condition to the nurse, a CNA should take no action unless directed to do so by the nurse. Ms. Tiefel’s testimony was persuasive and has been credited. According to the expert testimony of Victor Mendez, C.N.A., a CNA is not qualified to diagnose a medical condition. A CNA is required to document the presence of a rash or wound, and advise the appropriate registered nurse of the condition. The CNA may apply medication to a rash or wound only after receiving direction to do so from the registered nurse, and such application should take no more than 15 seconds. Mr. Mendez’s testimony was persuasive and has been credited. The Hospital conducted an internal investigation regarding the allegations, and subsequently terminated the Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing, enter a final order: finding the Respondent guilty of violating sections 464.204(1)(b) and 456.072(1)(o); placing the Respondent on probation for a period of one year, during which the Respondent shall complete such continuing education courses as specified by the Petitioner; and imposing an administrative fine of $125.00. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of September, 2015. COPIES FURNISHED: Deshon A. Davis, C.N.A. 3620 East Powder Horn Road Titusville, Florida 32796 Lucas Lawrence May, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Judson Searcy, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Ann L. Prescott, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Ann-Lynn Denker, PhD, ARNP, Chair Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue The issues are whether Respondent committed the offenses set forth in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0066421. He is thirty-eight years old. He specializes in the practice of neurology. Respondent worked at a medical clinic in 1995 until July 31, 1995. While he was employed at the clinic, he became friends with Barrie Williamson who also worked at the clinic. Ms. Williamson was twenty or twenty-one years old. Respondent quit working for the medical clinic on July 31, 1995. Shortly thereafter, Ms. Williamson lost her job at the clinic. In August of 1995, Ms. Williamson invited Respondent to have dinner and watch a movie at the home of her twenty-two year old cousin, A.S. Ms. Williamson practically lived with A.S. and her boyfriend, Phillip McNutt. On the designated evening, Respondent took a bottle of wine to A.S.'s apartment. The nature of this get-together was strictly social. Sometime after the party, Respondent called Ms. Williamson at A.S.'s apartment. When A.S. answered the phone, Respondent identified himself as "Rastus the Nastus." A.S. made some sexual comments to the Respondent in jest. She did not realize to whom she was speaking until Respondent mentioned a bottle of wine. A.S. then gave the phone to Ms. Williamson. In August of 1995, A.S. and Phillip McNutt were planning to go to Australia. A.S. needed a physical examination in order to get a visa. She called Respondent and asked him if he would like to see her naked. When Respondent asked A.S. what she meant, she told him she needed a physical examination because she was moving to Australia. Respondent agreed to perform the physical examination. Respondent formed a physician/patient relationship with A.S. at that time. A.S. and Respondent planned on several occasions for A.S. to go to Respondent's home so he could perform the physical examination. Something came up on each occasion that prevented A.S. from going to Respondent's home. Respondent was aware that A.S. was coming to his house to get her exam done so she could get her Australian visa. He also thought she was coming on to him and wanted to fool around. On September 9, 1995, A.S. called Respondent and told him she would be at his house around 2:00 p.m. A.S. asked Respondent if there was anything she could take to him. Respondent told her to bring wine and chocolates. Next, A.S. and Ms. Williamson went to a wallpaper store and a fabric store. They also went to a paint store to buy paint because Ms. Williamson was moving into a new house. They met with a professional painter who had worked for Ms. Williamson's mother. The painter agreed to help Ms. Williamson paint the inside of her house. During this time, A.S. bought a six-pack of beer and drank two or three of them. She also bought a keg of beer because Ms. Williamson expected other people to show up for a "painting party." Initially, Ms. Williamson planned to accompany A.S. to Respondent's home on September 9, 1995. She decided not to do so because she did not want to leave the painter alone in her house. A.S. asked Ms. Williamson if it was safe to go to Respondent's home by herself. Ms. Williamson answered affirmatively. A.S. arrived at Respondent's home around 4:00 p.m. on September 9, 1995. She knocked on the door which was unlocked. When Respondent did not answer, she let her in. She was carrying a beer, a bottle of wine, and a box of chocolates. Her little dog was with her. Initially, A.S. and Respondent sat on the couch. A.S. showed Respondent the medical examination form that needed to be signed by a doctor in order for A.S. to obtain an Australian visa. During their conversation about the requirements of the medical examination, A.S. talked to Ms. Williamson on the phone. The first section of the medical form requires an applicant to give his or her name, address, gender and date of birth. The applicant must also attach a photograph. A medical examiner must certify in writing that the photographic image is a true likeness of the examinee. The form which is the subject of this proceeding does not have a photograph attached to it. While A.S. and Respondent were reviewing the form, A.S. called Mr. McNutt to ask about her passport photographs. The second section of the form is entitled applicant's declaration. A.S. completed this section in part while she was at Respondent's home. One question inquires whether the applicant consumes alcohol, and if so, how much. The subject form has a mark in the "no" box. The next section of the form is entitled examining doctor's findings and requires the physician's signature. This section of the subject form is not filled in except for a blood pressure reading: Systolic, 110; Distolic, 70. While Respondent and A.S. discussed the form, they drank some of the wine that she brought with her to Respondent's house. After reviewing the form, Respondent told A.S. that he could not do the exam at his home. He told her she needed to set up an appointment at Dr. McCoy's office where Respondent was occasionally seeing patients. A.S. smoked one of Respondent's cigarettes. Because it was his last one, A.S. and Respondent went to the local convenience store to buy more cigarettes. They drove in A.S.'s car. While they were at the store, Respondent cleaned the beer cans out of A.S.'s car. She introduced Respondent to a family friend. When they returned to Respondent's home, Respondent suggested that they go into another room. A.S. removed her cut-off overalls, went into the other room, and lay on the floor. She pulled the top of her body suit down and took off her bra. Respondent began to perform a breast examination on A.S. During this examination, he asked A.S. whether she ever checked her own breast. Respondent told A.S. how important breast examinations are and showed her how they should be done. No actual sexual activity occurred between A.S. and Respondent until he started stroking her breast in the role of a doctor during the physical examination. A.S. told Respondent she did not feel comfortable with her clothes off. Respondent asked her if she would be more comfortable if he took his shirt off. A.S. said she would. When he began undressing, A.S. told him she was only joking. After A.S. unsnapped the bottom of her body suit, Respondent checked the lymph nodes in A.S.'s groin area. When A.S. asked him what he was doing, Respondent explained that persons with HIV will sometimes have swollen lymph nodes. He also explained that she had lymph nodes under her arms and showed her where they were. During this activity, Respondent saw evidence that A.S. was wearing a tampon. He got up and sat down on the end of a weight-lifting bench which was in the room. A.S. also sat up. She asked him about a riding crop and bull whip that were in the room. He told her they were from a previous girlfriend. Thereafter, Respondent attempted to insert his penis in A.S.'s mouth. A.S. became resistive and told Respondent that they should not be doing this. Respondent did not take her seriously, and when he would not stop, A.S. bit his penis. Respondent pulled A.S.'s hair and told her to let go of his penis. When A.S. quit biting Respondent he became very angry. He threw A.S. down on the floor, and bit her on the neck leaving the imprint of his teeth. A.S. then pulled Respondent's hair. A struggle ensued in which A.S. received bruises to her neck, face, breasts, and abdomen. When the struggle was over, Respondent went into the living room. A.S. got dressed and when she entered the living room, she threw the Respondent's watch at him. He, in turn, gave her the medical form and told her to leave. A.S. left Respondent's home with her little dog. She went straight to Ms. Williamson's house. Before A.S. arrived at her cousin's house, Respondent called Ms. Williamson and asked her to tell A.S. that if she still needed her physical for Australia to give him a call. When A.S. arrived at Ms. Williamson's house, A.S. appeared upset. She eventually told her cousin what had happened. A.S. was crying and was sick to her stomach. Ms. Williamson saw bruises on A.S. that had not existed before her visit to Respondent's home. Ms. Williamson took A.S. to Mr. McNutt's apartment. From there A.S. went to the Tallahassee Police Station. As a result of Respondent's conduct on September 9, 1995, the Professional Recovery Network requested that he undergo a psychiatric examination in January of 1996. The examination revealed that Respondent has a personality disorder. A personality disorder is an enduring personality trait that causes dysfunction. A diagnosis of "personality disorder not otherwise specified" applies when a person has several enduring personality traits which cause problems but no single trait stands out as being prominent. Respondent suffers from "personality disorder not otherwise specified" with narcissistic, obsessive-compulsive, antisocial, and paranoid personality traits (DSM-IV, 301.9). These personality traits in Respondent are chronic and indicative of chronic maladjustment. Respondent shows his narcissistic personality traits by exhibiting a sense of entitlement, a lack of empathy, interpersonal exploitation for personal gratification, and arrogance. Respondent is a perfectionist who is inflexible and rigid. These are obsessive-compulsive personality traits. Respondent is impulsive. He is irritable and aggressive when he does not get his way. These are antisocial personality traits. Respondent's paranoid personality traits are evidenced by suspicions that others are exploiting, harming, or deceiving him. He sees that world as a threatening place. He perceives attacks on his character or reputation that are not apparent to others and reacts angrily. Respondent tends to distance himself from others because of his lack of ability to trust. He reads hidden, demeaning, or threatening messages into benign remarks or events. Respondent's personality disorder is responsible for: his chronic interpersonal difficulties; his fear of loss of control; his baseline anger and irritability; his over-reactivity; his sensitivity to criticism, his mild anxiety and depression; his difficulty in trusting others; and his defensive distancing of himself from other in a narcissistic fashion. Respondent's personality disturbance also explains his tendencies to impulsively act out in a physical or verbal manner, particularly under periods of stress. Because Respondent cares about how he appears to others, he is likely to be remorseful after an impulsive incident. Professional boundaries are the psychological and physical rules that protect not only the professional relationship but also the patient who is in a position of vulnerability due to the imbalance of power between doctor and patient. In this case, Respondent blurred the boundaries between his role as a physician and his role as a biological being when he agreed to perform a physical examination as doctor in his home on a female with whom he was intending to have sexual relations. Regardless of the mixed messages that A.S. may have been sending, Respondent crossed the professional boundary after A.S. arrived at his home. His conduct from that point on was below the level of care, skill and treatment which is recognized by reasonably prudent neurologists as being acceptable under similar conditions and circumstances. He completely failed to recognize the need for a clear boundary between his doctor/patient relationship with A.S. and his desire for personal gratification. There is clear and convincing evidence that Respondent violated the standard of care when he: (1) drank alcohol with a patient during an appointment for a physical examination; (2) participated in consensual or non- consensual sexual activities with a patient during an appointment for a physical examination; and (3) offered to remove his clothing during an appointment for a physical examination. Respondent is guilty of sexual misconduct because he used his physician-patient relationship with A.S. to engage her in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment. Respondent is guilty of exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. Respondent's personality disorder impairs his ability to practice medicine with reasonable skill and safety. Until Respondent receives appropriate treatment for his personality disorder, he should not be allowed to return to an unrestricted practice.
Recommendation Based upon the findings of fact and the conclusions of law, it is, recommended that Petitioner enter a Final Order finding Respondent guilty of all offenses as charged in the Amended Administrative Complaint and revoking his license to practice medicine. DONE and ENTERED this 13th day of August, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1996.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since 1977, a family practice physician licensed to practice medicine in the State of Florida. He holds license number ME 0030309. Respondent's Prior Disciplinary Record DPR Case No. 0053427 On or about April 24, 1986, the Department issued a three-count administrative complaint in DPR Case No. 0053427 alleging that, in connection with his care and treatment of patients J.L. and S.B., Respondent violated Section 458.331(1)(n) (now 458.331(1)(m)), Florida Statutes (inadequate recordkeeping), Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering), and Section 458.331(1)(t), Florida Statutes (substandard care). The Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaint. On or about December 16, 1988, the Board of Medicine (hereinafter referred to as the "Board") issued a final order approving and adopting the parties' settlement stipulation, with amendments to which there were no objection. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $2,500.00 fine; and five years probation. DPR Case No. 90-01131 On or about July 19, 1990, the Department issued a two-count administrative complaint in DPR Case No. 90-01131 alleging that Respondent violated the terms and conditions of the probation imposed by the Board's December 16, 1988, final order in DPR Case No. 0053427 in that he failed to: "complete 30 hours of CME" during the first year of his probation; and "submit quarterly reports to the Board office." On or about May 6, 1991, the Board entered a default order (1) finding that Respondent committed the violations alleged in the administrative complaint, and (2) reprimanding him, fining him $2,000.00 and suspending his license "until such time as [he] appear[ed] before the Board and demonstrate[d] that he ha[d] brought himself into compliance with the Final Order of the Board filed on December 16, 1988." DPR Case Nos. 90-09231, 91-01228 and 90-15935 Administrative complaints were filed against Respondent in DPR Case Nos. 90-09231, 91-01228 and 90-15935. Thereafter, on or about June 2, 1992, the Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaints. On or about October 29, 1992, the Board issued a final order approving and adopting the parties' settlement stipulation, with additions. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $3,000.00 fine; restriction of license (with respect to prescribing, dispensing and administering drugs); and five years probation. DPR Case No. 91-12504 On October 7, 1992, the Department issued an 11-count amended administrative complaint in DPR Case No. 91-12504 charging Respondent with: one violation of Section 458.331(1)(g), Florida Statutes (failing to perform a lawful obligation- Count 10); three violations of Section 458.331(1)(m), Florida Statutes (inadequate recordkeeping- Counts 3, 6 and 9); three violations of Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering- Counts 2, 5 and 8); three violations of Section 458.331(1)(t), Florida Statutes (substandard care- Counts 1, 4 and 7); and one violation of Section 458.331(1)(x), Florida Statutes (violating a lawful Board order- Count 11). Count 10 of the amended administrative complaint alleged that "Respondent failed to comply with a legal obligation placed upon a licensed physician in that he possessed, stored, and dispensed controlled substances without having a DEA registration." The remaining counts of the amended administrative complaint dealt with Respondent's care and treatment of three patients, specifically, L.A., R.A. and R.M. Respondent denied the allegations of wrongdoing and the case was referred to the Division. A Division Hearing Officer conducted a formal hearing and issued a recommended order. The Board issued its final order finding Respondent guilty of Counts 1 (in part), 4 (in part), 6 (in part), 7 (in part), 9 (in part), 10 and 11 (in part) and disciplining him for having committed these violations by fining him $3,000.00, suspending his license for 15 months, and placing him on probation for five years following the reinstatement of his license. Facts Relating to DOAH Case No. 93-5475 In its final order issued in DPR Case Nos. 90-09231, 91-01228 and 90- 15935, which became effective upon its filing on October 29, 1992, the Board mandated, among other things, as conditions of Respondent's probation, that he "not in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto," and that he prescribe Schedule III-V controlled substances only in compliance with the restrictions set forth below: Respondent shall utilize sequentially numbered triplicate prescriptions. Respondent shall immediately provide one copy of each prescription to the monitor. Respondent shall provide one copy of each prescription to the Department's investi- gator within one month after issuing said prescription. Respondent prescribed by telephone order for patient B.P.: Tranxene (7.5 mg., #30) on or about March 1, 1993; and Fiorinal (#30) and Vicodin (#20) on March 11, 1993. None of these prescriptions was reduced to writing. Tranxene is a legend drug that contains the Schedule IV controlled substance chlorazepate. Fiorinal is a legend drug that contains the Schedule IV controlled substance butalbital. Vicodin is a legend drug that contains the Schedule III controlled substance hydrocodone bitartrate. On or about March 13, 1993, Respondent prescribed Valium (10 mg., #40, with one refill) for B.P. The prescription was reduced to writing, but not on a "sequentially numbered" prescription pad. Valium is a legend drug that contains the Schedule IV controlled substance diazepam. On or about March 22, 1993, Respondent again prescribed Vicodin (#10) for B.P. by telephone order without reducing the prescription to writing. On or about April 22, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from February 13th to March 13, 1992 [sic]." Among the prescriptions he submitted were: a prescription dated April 8, 1993, for Tylenol IV which did not contain Respondent's federal Drug Enforcement Administration (DEA) Certificate of Registration number; approximately 23 prescriptions for con- trolled substances that did not include the patient's address; and prescriptions for controlled substances that were out of sequential order. On or about May 11, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from April 10, 93-May 10, 1993." Among the prescriptions were: approximately four prescriptions for controlled substances which did not contain Respondent's federal DEA Certificate of Registration number; approximately 12 prescriptions for controlled substances that did not include the patient's address; and prescriptions for controlled substances that were out of sequential order. Facts Relating to DOAH Case No. 93-5531 On or about August 29, 1989, W.P., a twenty-one year old female, initially presented to Respondent complaining of a severe headache, cough, sore throat, running nose, swollen glands, fever of 101 to 102 degrees, and achiness throughout her body. These complaints were recorded in the medical records Respondent maintained on the patient. W.P. is a licensed practical nurse. She had worked for Respondent from approximately December of 1988, to June of 1989, but prior to August 29, 1989, she had never been a patient of his. During W.P.'s initial visit on August 29, 1989, Respondent conducted a brief history and physical examination of W.P. As his medical records reflect, Respondent's "clinical impressions," that is, what he "fe[lt were] . . . most probably the cause[s]" of W.P.'s pain and discomfort, were as follows: "1. viral syndrome;" "2. severe occipital/retro-orbital headaches;" and "3. ? early viral meningitis." Meningitis is an inflammation of the membrane of the brain or spinal cord. It may be viral or bacterial in nature. Bacterial meningitis is a life threatening illness that requires immediate attention and treatment. Under ordinary circumstances, such as those that existed in the instant case, it is not possible for a physician who suspects that a patient is suffering from viral meningitis to determine with any reasonable degree of certainty, based simply upon his clinical findings and observations, whether the suspected meningitis is viral or bacterial in nature. Therefore, a reasonably prudent physician who suspects that a patient may have viral meningitis should have the patient undergo a lumbar puncture (also referred to as a spinal tap) to confirm that the patient's illness is viral and not bacterial in nature, provided that a computerized axial tomography (CAT) scan of the patient's brain reveals that there is no contraindication to the patient undergoing such a procedure. At no time that W.P. was under his care did Respondent have her undergo a lumbar puncture, nor did he order or perform a CAT scan of her brain to see whether a lumbar puncture was contraindicated. Instead, during W.P.'s initial visit on August 29, 1989, Respondent ordered a complete blood count (CBC). He also gave W.P. an injection of 100 milligrams (mg.) of Demerol to treat her headache pain and an injection of 100 mg. of Vistaril to combat nausea. Demerol and Vistaril are legend drugs. Demerol contains the Schedule II controlled substance meperidrine. W.P. left Respondent's office reporting that she felt better. She returned a few hours later that same day, August 29, 1989, however, complaining of a pounding headache, nausea, chills, a sore neck and general discomfort. As his medical records reflect, Respondent's "clinical impressions" during this second visit on August 29, 1989, were as follows: "1. viral syndrome;" "2. meningeal irritation-> headache;" and "3. cervical lymphadenitis," which is an inflammation or swelling of the lymph nodes in the area of the neck. Respondent treated W.P. by again giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." The following day, August 30, 1989, W.P. made a third visit to Respondent's office. Although she was feeling a "little better" than she had the day before, she still had a sore throat and severe pain in the "back of [her] eyes and [at] the top of [her] head." As his medical records reflect, Respondent's "clinical impressions" during this third visit were as follows: "1. severe headaches;" "2. viral syndrome;" and "3. ? early meningitis (viral)." Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril. Nubain is an injectable legend drug. It is a synthetic narcotic agonist-antagonist analgesic that, because of its potency, is indicated for the relief of moderate to severe pain. Vistaril potentiates the central nervous system effects of Nubain. Nubain has potential for abuse, but the potential is low. An emotionally unstable patient is more likely to become dependent on Nubain than a patient without emotional problems. A patient who has been using other narcotics may suffer withdrawal symptoms upon the administration of Nubain. One of possible adverse effects of Nubain is headache (3 percent incidence). For an adult weighing 70 kilograms (kg.): the usual recommended dose of Nubain is 10 mg. every three to six hours; the recommended maximum single dose of Nubain is 20 mg.; and the recommended maximum daily dose of Nubain is 160 mg. At all times material to DOAH Case No. 93-5531 W.P. weighed considerably less than 70 kg. (For instance, on August 30, 1989, she weighed approximately 54 kg.) 5/ In determining how much Nubain a patient should be given, the physician must take into consideration the severity of the pain the patient is experiencing, the size and physical condition of the patient, and other medications the patient may be taking which, like Vistaril, will potentiate the effects of the Nubain given the patient. The Nubain and Vistaril that Respondent administered to W.P. during her August 30, 1989, office visit provided W.P. with "good relief." The following day, August 31, 1989, W.P. returned to Respondent's office complaining of a sore throat and "pain in [the] back of [her] eyes and head" which made her unable to concentrate at work. As his medical records reflect, Respondent's "clinical impressions" during this fourth visit were as follows: "1. viral syndrome;" "2. meningitis;" and "3. severe headaches due to (1) and (2) above." Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." The next day, September 1, 1989, W.P. paid a fifth visit to Respondent's office. She complained of a severe headache, nausea and anorexia and further reported that she had been vomiting. As his medical records reflect, Respondent's "clinical impressions" during this fifth visit were as follows: "1. viral syndrome;" "2. viral meningitis;" and "3. severe headache." Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." Respondent next treated W.P. on October 23, 1989. From that date until approximately April 2, 1990, Respondent saw W.P. on approximately 32 or 33 occasions in his office. W.P. presented on these occasions complaining of painful headaches. It was Respondent's "clinical impression" that, given W.P.'s symptomatology and history, these headaches were, for the most part, migraines. Although he based his assessment, in part, upon W.P.'s "history of migraine headaches [and her] family history of migraine headaches," Respondent did not document in the medical records he maintained on W.P. that she had such a personal and family history. On each of these approximately 32 or 33 occasions that W.P. presented with painful headaches, Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain 6/ and 100 mg. of Vistaril. Given that W.P. weighed considerably less than 70 kg. and that Vistaril potentiates the central nervous system effects of Nubain, the 20 mg. doses of Nubain that Respondent consistently used to treat W.P. were too high, notwithstanding the pain of which W.P. complained. Respondent also gave W.P. approximately five vials, each containing ten cubic centimeters (cc.) of Nubain at a concentration of 20 mg. per milliliter (ml.), to take home with her. Although Respondent did not specifically indicate in the medical records he maintained on W.P. why he gave W.P. these vials of Nubain, his purpose was apparent: to allow W.P., a licensed practical nurse, to give herself Nubain injections at home when she felt she needed pain relief instead of having to come to Respondent's office to obtain such relief. Respondent was not the only family practice physician from whom W.P. was receiving medical treatment during the period of time that she was under Respondent's care. W.P. also was being treated by Richard Campbell, M.D., during this time frame. In March of 1990, Dr. Campbell referred W.P. to Joann Bauling, Ph.D., a Florida-licensed psychologist, to treat W.P.'s "emotional depression." During a counseling session held on or about March 20, 1990, W.P. told Dr. Bauling that for the past six months she had been self-injecting Nubain given to her by Respondent. According to W.P., she was "getting one bottle a day" from Respondent. W.P. further stated that she could "get as much Nubain as she ever wanted" from Respondent. 7/ Dr. Bauling believed that W.P. was addicted to Nubain. On or about April 10, 1990, Dr. Bauling sent to Respondent the following letter that both she and W.P. had signed: Dear Dr. Jowhal: I am working with Dr. Joanne Bauling to stop using the drug "Nubain." I would appreciate it if you would also help me by no longer prescribing this or any other addictive medication. If I should call you requesting this type of medication, I would ask that you refer me to an emergency room. In addition to sending the foregoing letter to Respondent, in early April of 1990, prior to sending the letter, Dr. Bauling telephoned Respondent and advised him that W.P. was addicted to Nubain. During the telephone conversation, Dr. Bauling requested that Respondent not give W.P. any more Nubain and Respondent indicated that he would comply with Dr. Bauling's request. He too was concerned that W.P. might be addicted to the drug. Nonetheless, on W.P.'s next (and last) visit to his office, on February 27, 1991, when W.P. presented complaining of a severe headache, Respondent, as he had done in the past, treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril. Under the circumstances, it was inappropriate for him to treat W.P. with any Nubain, regardless of the dosage. Although W.P., following her initial visit to Respondent on August 29, 1989, returned to his office on numerous occasions complaining of headache pain, at no time that she was under Respondent's care did Respondent conduct or order: a complete neurological evaluation; a complete psychiatric evaluation; a CAT scan of the brain; a magnetic resonance imaging (MRI) of the brain; or an electroencephalogram (EEG). Neither did he seek a consultation with, or refer W.P. to, a specialist. Instead, Respondent continued to treat W.P. with intramuscular injections of 20 mg. doses of Nubain, along with Vistaril. Throughout the period that he treated W.P., Respondent's primary objective was to help W.P. find relief from the pain from which it appeared that she was suffering. Notwithstanding Respondent's good intentions, the care and treatment he provided her was, in certain respects, substandard. Specifically, in not doing the following while W.P. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: considering, when he suspected that W.P. might have meningitis, that she undergo a lumbar puncture and ordering or performing a CAT scan of W.P.'s brain to see whether a lumbar puncture was contraindicated; conducting or ordering complete neurological and psychiatric evaluations of W.P.; and consulting with a specialist concerning W.P.'s recurring headaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by (1) suspending his license to practice medicine in the State of Florida for a period of five years, beginning after the end of the suspension his license is now under, (2) placing him on probation for the following five years, and (3) imposing an administrative fine in the amount of $10,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1995. STUART M. LERNER 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 10th day of February, 1995.
