The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 0060427, based on violations of Sections 458.331(1)(j) Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity and Section 458.331(1)(x), Florida Statutes, by violating any provision of this Chapter, in that he violated Section 458.329, Florida Statutes, and Rule 59R-9.008, Florida Administrative Code, by committing sexual misconduct in the practice of medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 458.331(1)(j) and (x), Florida Statutes as to Patients T.S. and A.A. As discipline therefore, it is FURTHER RECOMMENDED: Respondent's license be suspended for a period of one year, commencing December 12, 1994, with his reinstatement upon demonstration that he can practice with skill and safety and upon such conditions as the Board of Medicine shall deem just and proper. Respondent pay an Administrative fine in the amount of $6,000.00. Respondent be placed on probation for a period of three years. DONE and ENTERED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 9th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 (in part), 30, 3, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88. Rejected as subsumed or irrelevant and immaterial: paragraphs 7, 9 (in part), 17 (in part), 28, 29 (in part), 59, 61, 65. Rejected as not proven by clear and convincing evidence: paragraphs 52, 53, 54, 55, 56, 57, 58, 60, 62, 63, 64, 66, 67. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, (in part), 7, 8, (in part), 9, 10 (in part), 12, 18 (in part), 19 (in part), 20 (in part), 21 (in part), 22 (in part) 27 (in part), 31, 44 (in part), 46 (in part), 47 (in part), 48 (in part), 49 (in part), 53 (in part), 57 (in part), 58 (in part). Rejected as subsumed or irrelevant and immaterial: paragraphs 6 (in part), 8 (in part), 10 (in part), 13, 15, 16, 18 (in part), 20 (in part), 21 (in part), 23, 24, 25, 26, 28, 29, 30 (in part), 34, 35, 36, 38, 39, 43, 44 (in part), 50, 55, 57 (in part), 58 (in part). Rejected as a restatement or commentary on the evidence: paragraphs 11, 14, 17, 22 (in part), 23, 27 (in part), 29, 30, 34, 35, 36, 37, 48, 40, 41, 42, 44 (in part), 45, 46 (in part), 47 (in part), 48 (in part), 49 (in part), 50, 51, 52, 53 (in part), 54, 55, 56. Rejected as not supported by the evidence: 19 (in part), 20 (in part), 32 and 33. COPIES FURNISHED: William Frederick Whitson, Esquire Senior Attorney Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lee Sims Kniskern, Esquire 2121 Ponce de Leon Blvd. Suite 630 Coral Gables, Florida 33134 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monore Street Tallahassee, Florida 32399-0792 Tom Wallace Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
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.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(j), 458.331(t), and 458.331(1)(x), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0043763. The Respondent specializes in general medicine and is not board certified. On November 25, 1996, patient A. J., a 28-year-old female, presented to the Respondent for the purpose of having a physical examination performed by a physician. The patient A. J. sought the physical examination for the purpose of complying with requirements of the Immigration and Naturalization Service ("INS"). The patient A. J. brought with her an INS physical examination form. The form included instructions to the person to be examined, as well as instructions to the physician who would perform the examination. The instructions to the person to be examined included: "The doctor will examine you for certain physical and mental health conditions. You will have to take off your clothes." The instructions to the physician performing the examination included the following: Please medically examine for adjustment of status the individual presenting this form. The medical examination should be performed according to the U. S. Public Health Service "Guidelines for Medical Examination of Aliens in the United States" and Supplements, which have been provided to you separately. The Respondent was familiar with the INS guidelines for medical examination of aliens in the United States, because he had previously performed such examinations on numerous occasions, and he was a physician who had been approved by the INS to perform such examinations. At the time of the examination of the patient A. J., those guidelines were incorporated in a document titled Technical Instructions for Medical Examination of Aliens in the United States, dated June 1991. At page I-1, the technical instructions included the following in a description of the role of the civil surgeon: The civil surgeon is responsible for reporting the results of the medical examination and all required tests on the prescribed forms. The civil surgeon is not responsible for determining whether an alien is actually eligible for adjustment of status; that determination is made by the INS officer after reviewing all records, including the report of the medical examination. (Emphasis added.) At page II-2 the technical instructions included the following description of the required physical examination: d. a physical examination, including an evaluation of mental status, sufficient to permit a determination of the presence and the severity of Class A and Class B conditions. The physical examination is to include a mental status examination that includes, at a minimum, assessment of intelligence, thought, cognition (comprehension), judgment, affect (and mood), and behavior. a physical examination that includes, at a minimum, examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia. all diagnostic tests required for the diagnosis of the diseases identified as communicable diseases of public health significance and other tests identified as necessary to confirm a suspected diagnosis of any other Class A or Class B condition. At all times material to this case, for purposes of INS physical examinations, Class A conditions were: Chancroid, Chronic alcoholism, Gonorrhea, Granuloma inguinale, Hansen's disease (infectious), HIV infection, Insanity, Lymphogranuloma venereum, Mental defect, Mental retardation, Narcotic drug addiction, Previous occurrence of one or more attacks of insanity, Psychopathic personality, Sexual deviation, Syphilis (infectious), and Tuberculosis (active). Class B conditions were: Hansen's disease (not infectious), Tuberculosis (not active), and "Other physical defect, disease or disability." At page II-2, the technical instructions clarified that: "The responsibility of the civil surgeon is only to conduct the examination and testing required to determine the alien's status regarding Class A and Class B conditions and to complete the medical report form. . . . If the alien needs further evaluation or treatment for conditions not relevant to the medical examination, the physician should advise the alien of this and should make recommendations for appropriate diagnostic evaluation and treatment." The patient A. J. had an appointment for 5:00 p.m. She had requested a late afternoon appointment to minimize the time she would miss from her work. When the patient A. J. arrived at the Respondent's office, the Respondent was the only other person present in the office. During the entire time that the patient A. J. was in the Respondent's office on November 25, 1996, the only people in the office were the patient A. J. and the Respondent. Upon her arrival, the Respondent took the patient A. J. to an office, where she filled out some paperwork, including her name, address, and telephone number. The Respondent inquired as to exactly where on her street her residence was located. The Respondent made repeated inquiries about the location of the patient's residence and even asked the patient to draw a map to her residence. The Respondent asked the Patient A. J. if he could stop by her house sometime. The patient A. J. said, "No." The Respondent also asked the patient A. J. if she was married and if her marriage was "real." After finishing the paper work, the Respondent took the patient A. J. into a laboratory room, where he drew blood for two of the tests, and also administered the agent for the skin test for tuberculosis. The Respondent then took the patient A. J. to an examination room, gave her a gown, and instructed her to remove her clothing. The patient A. J. inquired as to whether she should remove her underpants. The Respondent replied, "Only if you want me to do a pelvic." The patient A. J. thereupon told the Respondent that she was due for a PAP test and that she needed birth control pills. The Respondent told the patient A. J. that it would be a good idea for her to start using birth control pills, in case she wanted to do anything while her husband was not around, because the pills would be added protection against pregnancy. The patient A. J. told the Respondent that she did not sleep around, to which he replied, "You can never tell what will happen." During the entire time the patient A. J. was in the Respondent's office, there was music playing in the office. The physical examination included an examination of the patient's breasts. While examining the patient's breasts, the Respondent sang along with the music. The Respondent also commented to the patient A. J. that the singer on the background music, Luther Vandross, was the greatest love song singer of all time. Following the examination that was required by the INS, the Respondent performed an internal pelvic examination of the patient A. J. This was an examination that involved the insertion of instrumentation and the insertion of the doctor's fingers into the vagina of the patient. The Respondent took an excessive amount of time in performing the internal pelvic examination. During the course of the internal pelvic examination, the Respondent told the patient A. J. that she had a heavy discharge. He then proceeded to ask her how often she became sexually aroused and how easily she became sexually aroused. During the course of the internal pelvic examination the patient A. J. became worried and asked the Respondent if the two of them were the only people in the office. The Respondent replied in the affirmative. The patient then began to feel afraid when it was confirmed that she was alone with the Respondent. Her fear arose from the fact that she was alone with a physician who had been making what she considered to be inappropriate comments and questions about her marriage, her affairs, and her sexual arousal. The internal pelvic examination of the patient A. J. was not required by the INS. The Respondent would not have conducted an internal pelvic examination of A. J. if she had not requested that such an internal examination be performed. The specific reasons for which A. J. requested, and consented to, an internal pelvic examination was to have a PAP smear performed and to determine if she had any condition that would contra-indicate the use of birth control pills. The patient A. J. believed that a physician could not, or would not, prescribe birth control pills without first conducting a PAP smear and an internal pelvic examination. The patient was correct in this belief. Acceptable standards of medical practice mandate that a physician perform a PAP smear and conduct an internal pelvic examination prior to prescribing birth control pills to a patient. If the Respondent was not going to perform a PAP smear and was not going to prescribe birth control pills, there was no reason for him to perform an internal pelvic examination of the patient A. J. During the course of the internal pelvic examination, the Respondent did not do a PAP smear of the patient A. J. The Respondent also refused to prescribe birth control pills for the patient A. J. When the patient repeated her request for a prescription for birth control pills, the Respondent replied that he could not prescribe the birth control pills for "personal reasons." When the patient inquired as to what he meant by "personal reasons," the Respondent said that he did not want to establish a doctor/patient relationship with the Respondent "because you can never tell what the future might bring." The Respondent also said to the patient A. J. that "in the future we might get involved," and he went on to explain that if that were to be the case, he could get in trouble if he were to be her doctor. The Respondent also told the patient A. J. that she was "too charming" to be his patient, and mentioned again that he didn't want to prescribe the birth control pills for her "because he didn't know if in the future we might have an affair," and for that reason he did not want to get into a doctor/patient relationship with the patient A. J. During a discussion following the examination, the Respondent asked the patient A. J. to return the following Friday (the day after Thanksgiving) to obtain the results of her blood tests and to have her skin test read. The patient told the Respondent she had plans for the long weekend and asked if she could return on Wednesday. The Respondent agreed that she could return on Wednesday. He also inquired about her weekend plans. The patient A. J. told the Respondent that she was going on a fishing trip with a girlfriend. Thereupon the Respondent asked the patient if she would go fishing with him sometime. He went on to mention that someone had given him some new fishing equipment that he had never had a chance to use. When patient A. J. asked how much she owed for the examination, the Respondent replied, "the cost is usually $2,000.00, but for you it will only be $120.00." As the patient A. J. was exiting the Respondent's office, the Respondent followed her out to her car. The patient had not asked the Respondent to escort her to her car and his presence made her nervous because she did not know his purpose in following her out to the car. As a result of the Respondent's comments and conduct, the patient A. J., in her words, "felt violated." The patient felt that many of the Respondent's comments and questions were inappropriately personal. She also felt that the Respondent had taken advantage of her by conducting an internal pelvic examination for the purported purpose of performing a PAP smear and determining if there was any condition that contra-indicated her use of birth control pills, and then not performing a PAP smear and not prescribing birth control pills because of the Respondent's interest in the possibility that they might have a future affair. Two days later, on Wednesday, November 27, 1996, the patient A. J. returned to the Respondent's office for the purpose of obtaining the results of the blood tests and to have her skin test read. On this occasion the patient was not alone with the Respondent at any time and she had only minimal contact with him. The Respondent did notice that the patient seemed to have a hostile attitude. On Friday, November 28, 1996, the Respondent called the home telephone number of the patient A. J. The patient was home, but she did not answer the telephone. The Respondent left a message on the patient's answering machine to the effect that he was just calling to "touch base" and that he would call her again later. There was no medical purpose for the telephone call. The comments and questions the Respondent made to the patient A. J. regarding such matters as whether her marriage was real, commenting that she was charming, asking her to go fishing with him, suggesting the possibility of a future affair, requesting a map to her house, asking if he could come visit her, and asking about her sexual arousal, all constitute inappropriate and unacceptable conversation by a physician to a patient. Comments and questions of this nature may reasonably be interpreted by the patient as being sexual in nature. It is a departure from accepted standards of medical practice for a physician to perform an internal pelvic examination on a patient without also having a third person in the examination room. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an internal pelvic examination on a patient without also having a third person in the examination room. It is a departure from accepted standards of medical practice for a physician to perform an unnecessary internal pelvic examination on a patient. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an unnecessary internal pelvic examination on a patient.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing the charge in Count Three of the Administrative Complaint; Concluding that the Respondent has violated Sections 458.331(1)(j) and 458.331(1)(t), Florida Statutes, as charged in Counts One and Two of the Administrative Complaint, and Imposing a penalty for those violations consisting of (a) a letter of reprimand, (b) an administrative fine in the amount of $5,000.00, (c) suspension of the Respondent's license for a period of one year, and (d) placement of the Respondent on probation for a period of one year immediately following the period of suspension, with probation terms to be established by the Board of Medicine. Further, during the period of suspension, the Respondent should be required to attend courses to be determined by the Board of Medicine covering the subject matters of the patient-physician relationship and medical ethics. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.
The Issue Whether Respondent violated Sections 458.331(1)(g), (j), (m), (q), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of medicine pursuant to Section 20.20 and Chapters 455 and 458, Florida Statutes. Respondent, Ronald L. Cohen, M.D. (Dr. Cohen), is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0024014. Dr. Cohen's last known address is 7800 West Oakland Park Boulevard, Suite 216, Fort Lauderdale, Florida. Dr. Cohen's area of practice is urology, and he is board certified. He has been practicing in Fort Lauderdale since 1976. During his years of practice, he has enjoyed an excellent professional reputation. Between on or about July 2, 1990, through on or about May 16, 1992, Dr. Cohen treated Patient R.G. for various complaints. On or about July 2, 1990, Patient R.G., a thirty-four year-old female with a history of chemical dependency from the age of twelve for which she first underwent treatment in or about 1986, presented to Dr. Cohen with voiding complaints including post void dysuria, frequency, urgency, and urgency incontinence. However, such information about chemical dependency was unknown to Dr. Cohen until a subsequent time. Patient R.G. did not reveal to Dr. Cohen either her history of chemical dependency or treatment of that dependency. Dr. Cohen performed a physical examination of Patient R.G. wherein Dr. Cohen dilated Patient R.G.'s uretha. Dr. Cohen noted that Patient R.G.'s urinalysis was entirely within normal limits. Dr. Cohen then diagnosed Patient R.G. with urethritis, urthrel stenosis, and trigonitis. Dr. Cohen prescribed Patient R.G. a three-day supply of Noroxin and pyridium to improve Patient R.G.'s symptoms. Noroxin is an antibacterial agent indicated for the treatment of adults with complicated urinary tract infections. Pyridium is an analgesic agent indicated for the symptomatic relief of pain, burning, urgency frequency and other discomfort arising from irritation of the lower urinary tract mucosa. Patient R.G.'s symptoms persisted. On or about July 13, 1990, Patient R.G. underwent a cystoscopy, urethal dilation, and hydraulic bladder distention by Dr. Cohen at Outpatient Surgical Services in order to rule out interstitial cystitis. Dr. Cohen's postoperative impressions were as follows: Interstitial cystitis (inflammatory lesion of the bladder) and urethral stenosis. On or about July 17, 1990, Patient R.G. presented to Dr. Cohen's office in severe pain secondary to the cystoscopy and bladder distention. At that time, Patient R.G. complained of feeling bloated suprapubically. Dr. Cohen instilled dimethyl sulfoxide to relieve Patient R.G.'s pain. Patient R.G.'s symptoms were subsequently temporarily resolved. On or about January 19, 1991, Patient R.G. next presented to Dr. Cohen with complaints of a recurrent episode of urinary frequency and burning on the previous day. Shortly thereafter, in early 1991, Dr. Cohen asked Patient R.G. to go to lunch. Dr. Cohen and Patient R.G. subsequently began a social relationship which included sexual intercourse. At the time that Dr. Cohen initiated the relationship with Patient R.G. he was aware of the prohibitions against such conduct, knew he had choices available to him, but declined to exercise professional self-discipline. Dr. Cohen did exercise influence as Patient R.G.'s physician for the purpose of engaging in sexual relations. Dr. Cohen has never had a sexual relationship with any other patient. On or about April 8, 1991, Dr. Cohen wrote a prescription for thirty units of Valium 10 mg. for Patient R.G. who had at that time complained to Dr. Cohen of anxiety due to marital difficulties. Valium is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Valium is indicated for the management of anxiety disorders or for the short-term relief of symptoms of anxiety. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Valium prescription and therefore the records fail to justify his prescription of Valium, a controlled substance indicated for the treatment of anxiety, to Patient R.G. On May 16, 1992, Dr. Cohen wrote a prescription for thirty units of Prozac 20 mg. Prozac is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains Fluoxetine Hydrochloride which is not a controlled substance. Prozac is indicated for the treatment of depression. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Prozac prescription and therefore the records fail to justify his prescription of Prozac. Dr. Cohen inappropriately prescribed Prozac, a legend drug indicated for the treatment of depression. Prozac, however, was not indicated in the treatment of Patient R.G.'s urologic condition, interstitial cystitis. Dr. Cohen admitted to having prescribed Prozac to Patient R.G. as a favor so that Patient R.G. did not have to see her psychologist for said prescription. Dr. Cohen admitted to having a sexual relationship with Patient R.G. Dr. Cohen, by virtue of his sexual relationship with Patient R.G. and his inappropriate prescribing of Prozac for Patient R. G., failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. Dr. Cohen underwent an evaluation by Thomas J. Goldschmidt, M.D., a specialist in neurology and psychiatry, in conjunction with Richard Westberry, Ph.D., a licensed psychologist. Dr. Goldschmidt issued a report on their evaluation in which he stated: We see no evidence of any exploitative tendency regarding Dr. [Cohen] in his relationship with this patient. There is no evidence of any sexual addiction component. And we do not feel that his is behavior that is likely to reoccur or compromise his ability to practice urology. We see this as an isolated incident that Dr. [Cohen] approached in a very naive fashion and was primarily orchestrated by the dynamics of a sexually provocative, aggressive female who proposed a sexual act that was nonthreating (sic) to the patient while simultaneously providing ego gratification for longstanding, underlying emotional conflicts dealing with castration fears and anxiety. Dr. Cohen voluntarily entered into a contract with the Physician's Recovery Network to assist him in dealing with his despondency and depression. Dr. Cohen continues to see Dr. Westberry on a weekly basis for his despondency. Dr. Cohen has never had any disciplinary action taken against his license nor has he been dismissed from any position at a hospital at which he had staff privileges. Dr. Cohen has staff privileges at four hospitals. Dr. Cohen was Vice Chief of Staff at one of the hospitals until he voluntarily resigned that position when this case surfaced in order to avoid embarrassment to the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Cohen violated Sections 458.331(1)(g), (j), (m), (q) and (t) as set forth in Counts 1-5 in the Administrative Complaint, and imposing a $5,000 fine for the violations of Sections 458.331(1)(g) and (j), Florida Statutes and a $5,000 fine for violations of Sections 458.331(1)(m), (q), and (t), Florida Statues, for a total of $10,000, and placing Dr. Cohen on probation for two years under terms and conditions to be set by the Board of Medicine. DONE AND ENTERED this 15th day of March, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3274 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. Paragraphs 1-9: Accepted. Paragraphs 10-11: Accepted in substance. Paragraphs 12-14: Accepted. Paragraph 15: Rejected as irrelevant because the administrative complaint did not state such a violationas it related to the valium but only as to the Prozac. The violation relating to valium was the record keeping. Paragraphs 16-19: Accepted. Paragraph 20: Accepted except as to the valium. The administrative compliant did not allege such a violationas it related to valium. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: Accepted as to his professional reputation. The remainder is rejected as unnecessary. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: The first sentence is accepted. The remainder is unnecessary. Paragraphs 7-13: Accepted. Paragraph 14: Rejected as subordinate to the facts found. Paragraph 15: Rejected as not supported by the greater weight of the evidence. Dr. Cohen is the party whoinitiated the social relationship with R.G. when heasked her out to lunch. He was physically attracted tothe patient and that is why he asked her out. Paragraph 16: Accepted. Paragraph 17: The first sentence is accepted. The last sentence is rejected as subordinate to the facts found because Dr. Cohen did prescribe medication forR.G. which had nothing to do with the complaints forwhich she was seeing Dr. Cohen. Paragraph 18: Rejected as subordinate to the facts found. See paragraph 17. Paragraphs 19-22: Rejected as subordinate to the facts found. Paragraph 23: The first and second sentences are rejected as subordinate to the facts found. The thirdsentence is accepted to the extent that he has enteredcounseling. Paragraphs 24: Accepted to the extent that he is in counseling and that such a relationship will not likelyoccur again. Paragraph 25: Accepted in substance. Paragraph 26: The first two sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 27: Accepted in substance that such a relationship is unlikely to happen in the future. Rejected to the extent that it implies that R.G. gavefree, full informed consent to the sexual activity. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts found. Paragraphs 31-34: Accepted in substance. Paragraph 35: Rejected as unnecessary. Paragraphs 36-39: Accepted in substance. COPIES FURNISHED: Donald G. Korman, Esquire Korman, Schorr and Wagenheim The Dart Building 2101 North Andrews Avenue, Suite 400 Ft. Lauderdale, Florida 33311 Paul Watson Lambert, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-6506 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
