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 Should discipline be imposed by the State of Florida, Board of Medicine (the Board), against Respondent's physician assistant's license for alleged inappropriate conduct in relation to Patient T.S.?
Findings Of Fact Stipulated Facts: Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to this Complaint, Respondent was a licensed physician assistant within the State of Florida, having been issued license number PA 3346 on May 28, 1997. Respondent's address of record is 2608 Maywood Street, Eustis, Florida 32726-2063. Respondent is a physician assistant at Care First of Central Florida (hereinafter "Care First"), 15050 U.S. Highway 441, Eustis, Florida 32726. Patient T.S., (a.k.a. T.B.), and her daughters had been patients of Care First for several years for various family medical matters. On or about November 16, 2004, Patient T.S. met Respondent for the first time when Patient T.S. accompanied Patient R.P., her significant other, to Patient R.P.'s appointment with Respondent at Care First. During Patient R.P.'s appointment, Patient T.S. discussed a problem she was experiencing with fibromyalgia (a condition that causes widespread muscle and soft tissue pain and tenderness, especially in the trunk, neck, and shoulders). Respondent suggested Patient T.S. make an appointment with him for a checkup of her condition. Patient T.S. made the appointment for the following day, November 17, 2004, and attended her appointment accompanied by Patient R.P. Respondent thoroughly and appropriately examined Patient T.S. on November 17, 2004. On or about November 26, 2004, Patient T.S. presented herself unattended to Care First with complaints of coughing and chest congestion. Respondent met with Patient T.S. in an examination room with no other persons present. Respondent returned to the examination room, gave Patient T.S. some medication for her condition, and exited the room.1/ Prior Disciplinary History: There was no indication that Respondent had been accused of any prior wrongdoing involving his practice as a physician assistant.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered which dismisses the Administrative Complaint. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S 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 11th day of August, 2006.
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.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue Respondent is a physician. In his office one morning he struck up a conversation with, and thereafter checked the blood pressure of, a nurse's assistant who, at the time, was working under contract for one of Respondent's patients. Respondent invited the nurse's assistant to come back to his office later, by herself, so that he could recheck her blood pressure, and she accepted his offer. Following her return to the doctor's office, Respondent began to engage in sexual activities with the woman, but she refused to reciprocate his advances. The issue in this case is whether Respondent committed sexual misconduct with a patient, a patient's guardian, or a patient's representative.
Findings Of Fact Dr. Carlos A. Cohen ("Cohen") is a board-certified infectious disease specialist who was, at all times relevant to this case, licensed to practice medicine in the State of Florida. His office is located in Palm Beach County, and he has privileges at several hospitals in that area. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Cohen. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. The events that gave rise to this case occurred on July 5, 2009. On that Sunday morning, as on other weekend days, Cohen's office was open so that patients needing antibiotic infusion therapy could receive treatment. Cohen himself did not routinely attend to patients in his office on weekends. Rather, nurses administered the infusion therapy on his orders. Cohen did, however, make rounds at the local hospitals on weekends when he was on call, as he happened to be on this particular day. At some point during the morning, Cohen's wife called him on his cell phone and told him that the power was out at his office. Cohen does not clearly remember where he was when he received this call, but upon hearing that his office was without electricity, he stopped what he was doing and headed there to investigate. Meantime, a nurse's assistant named "M. L." was driving "Jane Doe," an elderly patient of Cohen's, to the doctor's office for infusion therapy. M. L. worked for a nurse registry that provided licensed caregivers on a contractual basis to persons needing assistance, such as Jane Doe. M. L. had not met Jane Doe before that morning (and, it turned out, would not see her again after July 5, 2009). M. L.'s job that day was to help Jane Doe get dressed, take her to the doctor's office, bring her back home, prepare a meal or snack for her, provide physical assistance as needed to allow Jane Doe to complete her daily activities, and generally watch out for the patient's safety. M. L. had not been informed of Jane Doe's medical condition and was not authorized to make medical decisions on Jane Doe's behalf. She neither had nor needed access to Jane Doe's medical records. Cohen arrived at his office, coincidentally, at about the same time as M. L. and Jane Doe. All three were outside, walking towards the entrance to the building, when an electrical transformer exploded overhead, making a loud noise. This startling event unsettled M. L. Once inside, Jane Doe was taken back for treatment. M. L. remained in the front reception area to wait for Jane Doe to return. Cohen soon entered this front room as well, to wait for the arrival of a crew from the electric company, which, he had been told, was on its way to fix the problem with the transformer. As they waited together, M. L. deduced that Cohen was a doctor from the fact that others were addressing him by that title. In time, Cohen took a seat next to M. L., and the two struck up a conversation. M. L.'s primary language is Haitian Creole, and she has a limited command of English. Cohen's native tongue is Spanish, but he is fluent in English. The two communicated in English. M. L. told Cohen that the explosion earlier had made her nervous. She also mentioned to him that she needed medicine to control her blood pressure, which she had forgotten to take that morning. Cohen offered to take M. L.'s blood pressure, and she agreed to let him do so. To accomplish this, Cohen led M. L. out of the reception area and into a hallway leading to the examination rooms. While M. L. sat on a stool in the hallway, Cohen took her blood pressure, which was elevated. Cohen informed M. L. that her blood pressure was high. In the course of their conversation, M. L. made Cohen aware that she would be off duty that afternoon. Cohen needed to complete his rounds at the hospitals, but he, too, would be free later in the day. Cohen invited M. L. to return to his office, alone, at 4:00 p.m. so that he could recheck her blood pressure.1 Cohen knew that no one else would be in the office at that time. M. L. accepted the doctor's invitation. Cohen and M. L. then went their separate ways. Cohen remained at the office for a while, until the electricity came back on, after which he left to complete his rounds. M. L. took Jane Doe home and finished her shift. The two met again that afternoon, as planned, at Cohen's office around 4:00 p.m. Once inside the office, where the two were alone, Cohen took M. L.'s blood pressure. This time, the numbers were normal, and Cohen so informed M. L. M. L. stood up to shake Cohen's hand, thank him, and say goodbye. Suddenly, Cohen pulled M. L. into an embrace, which she did not welcome. Cohen continued to force himself upon M. L., pinning her against the wall. He kissed her, sucked her breasts, and exposed his penis, demanding that she "kiss" it. All of this was against M. L.'s will.2 M. L. managed to break free, and she fled Cohen's office.3 Cohen chased after her. They got in their respective cars and drove away, M. L. heading home, Cohen following her in hot pursuit.4 When she arrived at her house, Cohen pulled up behind her. M. L. went inside, and Cohen left without further incident. Ultimate Factual Determinations The evidence is insufficient to establish, clearly and convincingly, that M. L. was either a "guardian" or "representative" of Jane Doe as those terms are used in Section 456.063(1), Florida Statutes, which proscribes "[s]exual misconduct in the practice of a health care profession." Even if M. L. were in fact Jane Doe's proxy, however, the evidence is insufficient to establish that Cohen had a professional relationship with M. L. qua Jane Doe's proxy. To the contrary, the evidence clearly and convincingly proves that the relevant professional relationship was that which existed between Cohen and M. L. in her own right; that is, in all of her relevant dealings with Cohen, M. L. acted exclusively in her personal capacity and on her own behalf, no one else's. Thus, Cohen is not guilty of engaging in sexual misconduct with a patient's guardian or representative. Cohen provided medical attention to M. L. on two separate occasions while acting in his professional capacity as a physician. On both occasions, Cohen was in his office, a place where his authority as a doctor is greatest. Moreover, because Cohen was in his office, surrounded by the tools of his trade, M. L. reasonably could have expected that the doctor would do more than simply take her blood pressure if, in his professional judgment based on her blood pressure or other reasons, he determined that she needed additional treatment. Such an expectation was especially justified in this instance because Cohen knew that M. L. suffered from hypertension when he invited her to return to his office for the purpose of rechecking her blood pressure, which was elevated that morning because (as Cohen also knew) M. L. had forgotten to take her medicine and had been startled by an explosion. In this context, M. L. was reasonably entitled to place her trust and confidence in Cohen, and to rely upon his special expertise and judgment as a physician in determining whether she was alright. As it happened, Cohen determined, after rechecking M. L.'s blood pressure, that further medical intervention was unnecessary. This was, in fact, a professional judgment upon which M. L. reasonably could (and apparently did) rely. A doctor's decision that all is well, even if based on little more than a routine procedure such as a blood pressure test, is an exercise of professional judgment, no less than if the doctor concludes that something is amiss and orders additional tests or treatment. It was this exercise of professional judgment that distinguished Cohen's taking of M. L.'s blood pressure from, e.g., M. L.'s performing a self-test at home or in a drugstore. The evidence establishes, clearly and convincingly, that, although the physician-patient relationship was casual or informal in nature, M. L. was nevertheless a patient of Cohen's for purposes of the statutes which prohibit a doctor from engaging in sexual activity with a patient. It is therefore determined, as a matter of ultimate fact, that Cohen is guilty of engaging in sexual misconduct with a patient, which is a disciplinable offense pursuant to Sections 456.072(1)(v) and 458.331(1)(j), (nn), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Cohen guilty of committing a single act of sexual misconduct with a patient, in violation of Section 458.329, Florida Statutes. Because this is Cohen's first such offense, it is further RECOMMENDED that the Board of Medicine: (a) suspend Cohen's medical license for one year, to be followed by both (i) a period of two years' probation, one condition of which should be the completion of five hours of continuing medical education in risk management, and (ii) a reprimand against Cohen's license; (b) require that Cohen complete 100 hours of community service; and (c) impose an administrative fine of $5,000.00. DONE AND ENTERED this 14th day of September, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 14th day of September, 2010.
Findings Of Fact Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period. At the time of F.S.' 1984 visit, the standard of care for a male over 40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back. Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on F.S. by Respondent. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point, F.S was referred for blood tests specific to prostate cancer and to an urologist. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history. The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido. On March 20, 1989, Respondent began treating Patient C.C. and admitted C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital. Respondent's discharge summary for C.C. dated April 4, 1989, included the following: . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation. She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within 24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . . The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons. Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her. On June 20, 1989, Respondent received a telephone call from C.C. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida. Respondent was seeing the patient as both a friend and a medical doctor. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed. Respondent did not make any sexual advances toward C.C. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints. ENTERED this 3rd day of March, 1993, in Tallahassee, Florida. DIANNE CLEAVINGER 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 3rd day of March, 1993.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(j), 458.331(t), and 458.331(1)(x), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0043763. The Respondent specializes in general medicine and is not board certified. On November 25, 1996, patient A. J., a 28-year-old female, presented to the Respondent for the purpose of having a physical examination performed by a physician. The patient A. J. sought the physical examination for the purpose of complying with requirements of the Immigration and Naturalization Service ("INS"). The patient A. J. brought with her an INS physical examination form. The form included instructions to the person to be examined, as well as instructions to the physician who would perform the examination. The instructions to the person to be examined included: "The doctor will examine you for certain physical and mental health conditions. You will have to take off your clothes." The instructions to the physician performing the examination included the following: Please medically examine for adjustment of status the individual presenting this form. The medical examination should be performed according to the U. S. Public Health Service "Guidelines for Medical Examination of Aliens in the United States" and Supplements, which have been provided to you separately. The Respondent was familiar with the INS guidelines for medical examination of aliens in the United States, because he had previously performed such examinations on numerous occasions, and he was a physician who had been approved by the INS to perform such examinations. At the time of the examination of the patient A. J., those guidelines were incorporated in a document titled Technical Instructions for Medical Examination of Aliens in the United States, dated June 1991. At page I-1, the technical instructions included the following in a description of the role of the civil surgeon: The civil surgeon is responsible for reporting the results of the medical examination and all required tests on the prescribed forms. The civil surgeon is not responsible for determining whether an alien is actually eligible for adjustment of status; that determination is made by the INS officer after reviewing all records, including the report of the medical examination. (Emphasis added.) At page II-2 the technical instructions included the following description of the required physical examination: d. a physical examination, including an evaluation of mental status, sufficient to permit a determination of the presence and the severity of Class A and Class B conditions. The physical examination is to include a mental status examination that includes, at a minimum, assessment of intelligence, thought, cognition (comprehension), judgment, affect (and mood), and behavior. a physical examination that includes, at a minimum, examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia. all diagnostic tests required for the diagnosis of the diseases identified as communicable diseases of public health significance and other tests identified as necessary to confirm a suspected diagnosis of any other Class A or Class B condition. At all times material to this case, for purposes of INS physical examinations, Class A conditions were: Chancroid, Chronic alcoholism, Gonorrhea, Granuloma inguinale, Hansen's disease (infectious), HIV infection, Insanity, Lymphogranuloma venereum, Mental defect, Mental retardation, Narcotic drug addiction, Previous occurrence of one or more attacks of insanity, Psychopathic personality, Sexual deviation, Syphilis (infectious), and Tuberculosis (active). Class B conditions were: Hansen's disease (not infectious), Tuberculosis (not active), and "Other physical defect, disease or disability." At page II-2, the technical instructions clarified that: "The responsibility of the civil surgeon is only to conduct the examination and testing required to determine the alien's status regarding Class A and Class B conditions and to complete the medical report form. . . . If the alien needs further evaluation or treatment for conditions not relevant to the medical examination, the physician should advise the alien of this and should make recommendations for appropriate diagnostic evaluation and treatment." The patient A. J. had an appointment for 5:00 p.m. She had requested a late afternoon appointment to minimize the time she would miss from her work. When the patient A. J. arrived at the Respondent's office, the Respondent was the only other person present in the office. During the entire time that the patient A. J. was in the Respondent's office on November 25, 1996, the only people in the office were the patient A. J. and the Respondent. Upon her arrival, the Respondent took the patient A. J. to an office, where she filled out some paperwork, including her name, address, and telephone number. The Respondent inquired as to exactly where on her street her residence was located. The Respondent made repeated inquiries about the location of the patient's residence and even asked the patient to draw a map to her residence. The Respondent asked the Patient A. J. if he could stop by her house sometime. The patient A. J. said, "No." The Respondent also asked the patient A. J. if she was married and if her marriage was "real." After finishing the paper work, the Respondent took the patient A. J. into a laboratory room, where he drew blood for two of the tests, and also administered the agent for the skin test for tuberculosis. The Respondent then took the patient A. J. to an examination room, gave her a gown, and instructed her to remove her clothing. The patient A. J. inquired as to whether she should remove her underpants. The Respondent replied, "Only if you want me to do a pelvic." The patient A. J. thereupon told the Respondent that she was due for a PAP test and that she needed birth control pills. The Respondent told the patient A. J. that it would be a good idea for her to start using birth control pills, in case she wanted to do anything while her husband was not around, because the pills would be added protection against pregnancy. The patient A. J. told the Respondent that she did not sleep around, to which he replied, "You can never tell what will happen." During the entire time the patient A. J. was in the Respondent's office, there was music playing in the office. The physical examination included an examination of the patient's breasts. While examining the patient's breasts, the Respondent sang along with the music. The Respondent also commented to the patient A. J. that the singer on the background music, Luther Vandross, was the greatest love song singer of all time. Following the examination that was required by the INS, the Respondent performed an internal pelvic examination of the patient A. J. This was an examination that involved the insertion of instrumentation and the insertion of the doctor's fingers into the vagina of the patient. The Respondent took an excessive amount of time in performing the internal pelvic examination. During the course of the internal pelvic examination, the Respondent told the patient A. J. that she had a heavy discharge. He then proceeded to ask her how often she became sexually aroused and how easily she became sexually aroused. During the course of the internal pelvic examination the patient A. J. became worried and asked the Respondent if the two of them were the only people in the office. The Respondent replied in the affirmative. The patient then began to feel afraid when it was confirmed that she was alone with the Respondent. Her fear arose from the fact that she was alone with a physician who had been making what she considered to be inappropriate comments and questions about her marriage, her affairs, and her sexual arousal. The internal pelvic examination of the patient A. J. was not required by the INS. The Respondent would not have conducted an internal pelvic examination of A. J. if she had not requested that such an internal examination be performed. The specific reasons for which A. J. requested, and consented to, an internal pelvic examination was to have a PAP smear performed and to determine if she had any condition that would contra-indicate the use of birth control pills. The patient A. J. believed that a physician could not, or would not, prescribe birth control pills without first conducting a PAP smear and an internal pelvic examination. The patient was correct in this belief. Acceptable standards of medical practice mandate that a physician perform a PAP smear and conduct an internal pelvic examination prior to prescribing birth control pills to a patient. If the Respondent was not going to perform a PAP smear and was not going to prescribe birth control pills, there was no reason for him to perform an internal pelvic examination of the patient A. J. During the course of the internal pelvic examination, the Respondent did not do a PAP smear of the patient A. J. The Respondent also refused to prescribe birth control pills for the patient A. J. When the patient repeated her request for a prescription for birth control pills, the Respondent replied that he could not prescribe the birth control pills for "personal reasons." When the patient inquired as to what he meant by "personal reasons," the Respondent said that he did not want to establish a doctor/patient relationship with the Respondent "because you can never tell what the future might bring." The Respondent also said to the patient A. J. that "in the future we might get involved," and he went on to explain that if that were to be the case, he could get in trouble if he were to be her doctor. The Respondent also told the patient A. J. that she was "too charming" to be his patient, and mentioned again that he didn't want to prescribe the birth control pills for her "because he didn't know if in the future we might have an affair," and for that reason he did not want to get into a doctor/patient relationship with the patient A. J. During a discussion following the examination, the Respondent asked the patient A. J. to return the following Friday (the day after Thanksgiving) to obtain the results of her blood tests and to have her skin test read. The patient told the Respondent she had plans for the long weekend and asked if she could return on Wednesday. The Respondent agreed that she could return on Wednesday. He also inquired about her weekend plans. The patient A. J. told the Respondent that she was going on a fishing trip with a girlfriend. Thereupon the Respondent asked the patient if she would go fishing with him sometime. He went on to mention that someone had given him some new fishing equipment that he had never had a chance to use. When patient A. J. asked how much she owed for the examination, the Respondent replied, "the cost is usually $2,000.00, but for you it will only be $120.00." As the patient A. J. was exiting the Respondent's office, the Respondent followed her out to her car. The patient had not asked the Respondent to escort her to her car and his presence made her nervous because she did not know his purpose in following her out to the car. As a result of the Respondent's comments and conduct, the patient A. J., in her words, "felt violated." The patient felt that many of the Respondent's comments and questions were inappropriately personal. She also felt that the Respondent had taken advantage of her by conducting an internal pelvic examination for the purported purpose of performing a PAP smear and determining if there was any condition that contra-indicated her use of birth control pills, and then not performing a PAP smear and not prescribing birth control pills because of the Respondent's interest in the possibility that they might have a future affair. Two days later, on Wednesday, November 27, 1996, the patient A. J. returned to the Respondent's office for the purpose of obtaining the results of the blood tests and to have her skin test read. On this occasion the patient was not alone with the Respondent at any time and she had only minimal contact with him. The Respondent did notice that the patient seemed to have a hostile attitude. On Friday, November 28, 1996, the Respondent called the home telephone number of the patient A. J. The patient was home, but she did not answer the telephone. The Respondent left a message on the patient's answering machine to the effect that he was just calling to "touch base" and that he would call her again later. There was no medical purpose for the telephone call. The comments and questions the Respondent made to the patient A. J. regarding such matters as whether her marriage was real, commenting that she was charming, asking her to go fishing with him, suggesting the possibility of a future affair, requesting a map to her house, asking if he could come visit her, and asking about her sexual arousal, all constitute inappropriate and unacceptable conversation by a physician to a patient. Comments and questions of this nature may reasonably be interpreted by the patient as being sexual in nature. It is a departure from accepted standards of medical practice for a physician to perform an internal pelvic examination on a patient without also having a third person in the examination room. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an internal pelvic examination on a patient without also having a third person in the examination room. It is a departure from accepted standards of medical practice for a physician to perform an unnecessary internal pelvic examination on a patient. A reasonably prudent, similar physician acting under similar conditions and circumstances would not perform an unnecessary internal pelvic examination on a patient.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing the charge in Count Three of the Administrative Complaint; Concluding that the Respondent has violated Sections 458.331(1)(j) and 458.331(1)(t), Florida Statutes, as charged in Counts One and Two of the Administrative Complaint, and Imposing a penalty for those violations consisting of (a) a letter of reprimand, (b) an administrative fine in the amount of $5,000.00, (c) suspension of the Respondent's license for a period of one year, and (d) placement of the Respondent on probation for a period of one year immediately following the period of suspension, with probation terms to be established by the Board of Medicine. Further, during the period of suspension, the Respondent should be required to attend courses to be determined by the Board of Medicine covering the subject matters of the patient-physician relationship and medical ethics. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.
The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(u), 458.331(1)(j), and 458.331(1)(nn), Florida Statutes (2002 and 2003); Subsection 458.331(1)(c), Florida Statutes (2004)1; and Florida Administrative Code Rule 64B8-9.008, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine under Florida law pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2002-2004). At all times material to the allegations in the Administrative Complaint, Dr. Medina was licensed to practice medicine within the State of Florida pursuant to Chapter 458, Florida Statutes (2002-2004), having been issued license number ME 74141 on September 9, 1997. Dr. Medina is board-certified in orthopedic surgery. In April 2003, S.C., who at that time was 15 years old, went to Jewitt Orthopedic Center in Orlando, Florida, regarding her collarbone. She was advised that she could have surgery or, due to her young age, she could wait to see if the problem resolved as she grew older. S.C. desired another opinion from an orthopedic surgeon. With her parents' permission, she went on the Internet and located the e-mail addresses of three orthopedic surgeons using the membership directory of America Online (AOL). One of the doctors she found in the membership directory was Dr. Medina. She sent an e-mail to each of the three orthopedic physicians, telling him of her ailment, the opinion that she had received from the Jewett Orthopedic Center, and requesting a second opinion. Two of the three doctors responded to her e-mail. One of these doctors was Dr. Medina, who advised S.C. that her bones were still growing and that due to her age she should wait and see if her collarbone healed by itself. In responding to her inquiry, Dr. Medina used the e-mail address of luvortho@aol.com. A few days after Dr. Medina gave S.C. his medical opinion, he sent S.C. another e-mail, inquiring further about her symptoms in more detail. S.C. provided Dr. Medina with additional information along with her instant messaging name. Dr. Medina continued to send e-mails to S.C. and to chat with her using instant messaging. The communications became friendly and included discussions regarding friends, music, and school. S.C. provided Dr. Medina with a link to her online live journal, which contained personal information, including her name, age, and location and a photograph of her. The online journal site also contained a link to her poetry site at Geocities. Dr. Medina would leave comments on the poetry site. After viewing S.C.'s photograph on her live journal, Dr. Medina began to make flirtatious comments to S.C. such as "AWW you're cute." Dr. Medina also offered to buy S.C. clothing and a compact disc player. Dr. Medina told S.C. about his work as an orthopedic surgeon, including that he frequently traveled to foreign countries to study new technology in orthopedic surgery, that he performed consulting work in Orlando, that he was rich, and that he was located in Springhill. He sent photographs to S.C., including a photograph of himself with his son. On Sunday, September 21, 2003, Dr. Medina sent S.C. a message that he was going to Orlando that day. S.C. told him that she would be studying at a local book store in a shopping center in Orlando that same day. S.C. was now 16 years old. Dr. Medina went to the book store and found S.C. studying. They talked a short while, and Dr. Medina offered to take her to lunch. S.C. agreed to go, and they got into his vehicle. Dr. Medina gave S.C. some roses, drove to downtown Orlando, and parked on the street. Prior to going to a local restaurant, Dr. Medina gave S.C. a kiss and tried to hold her hand as they walked down the street. His actions made S.C. feel awkward and confused. They ate lunch and made small talk. At the end of the meal, Dr. Medina told S.C. that he had left his wallet in the car, and he left to retrieve the wallet. He came back and paid for the meal, and they left the restaurant. Dr. Medina told S.C. that he had moved the car closer to the restaurant. They went to a parking garage and took an elevator to an upper deck where Dr. Medina had relocated the car. S.C. did not see anyone else on the parking deck where his car was parked. When they reached the vehicle, Dr. Medina kissed S.C. and she turned away. He opened the back door of the car and asked S.C. to get in the backseat while he got something. She did as he requested. Dr. Medina got into the backseat with S.C. and tried to kiss her. She told him that she did not want to kiss. He then placed his hands on her stomach, lifted up her shirt, moved his hands under her bra and touched her breasts, and then unzipped her pants. S.C. told him that she did like what he was doing, but he continued. Dr. Medina put his fingers inside S.C.'s panties and digitally penetrated her. He then pulled off his clothes down to his underwear, put on a condom, and partially inserted his penis in her vagina. S.C. kept trying to scoot away from Dr. Medina, telling him that she did not want to do anything and that she needed to be somewhere to meet her friends. He stopped and drove her back to the shopping center, where he left her. Following her encounter with Dr. Medina, S.C. put a block on her computer to prevent Dr. Medina from communicating with her via instant messaging. However, she did continue to receive e-mails from Dr. Medina. The content of his communications changed drastically after the incident in the parking lot. He began to send pornographic pictures to her, including an image of a male genitalia, which he told S.C. was of him. Sometime prior to January 2004, the block which had been placed on S.C.'s instant messaging was removed, and Dr. Medina started to communicate with S.C. again via instant messaging. In early January 2004, S.C.'s stepmother, Mrs. S.E.C., accessed S.C.'s e-mail account and discovered that pornographic photographs and sexually explicit comments were being sent to S.C. from luvortho@aol.com. Mrs. S.E.C. researched the e-mail address and learned that the address belonged to Dr. Medina. Mrs. S.E.C. contacted the Florida Department of Law Enforcement (FDLE) and reported that someone was sending her teenage daughter e-mails containing pornographic photographs and sexually explicit comments. Denise Nevers, an agent for FDLE, responded to Mrs. S.E.C.'s complaint. Ms. Nevers subpoenaed records from AOL and confirmed that the e-mail account of luvortho@aol.com belonged to Dr. Medina. A background check on Dr. Medina revealed that he had an internet web site for his business, Medina Orthopedics and Sports Medicine. The web site listed the office e-mail as luvortho@aol.com. On January 7, 2004, Mrs. S.E.C. logged on to her computer to check her step-daughter S.C.'s e-mails and signed onto the AOL instant messenger. While she was logged on, Mrs. S.C. received an instant message from Dr. Medina as luvortho and decided to pose as S.C. and chat with the message sender. Dr. Medina asked her why S.C. was home from school, and Mrs. S.E.C. replied that she was sick. Dr. Medina told her that she needed an antibiotic and volunteered to call in a prescription for her. During his conversation with Mrs. S.E.C., Dr. Medina wrote: "i can still feel uuu, from the last, was the besttt, I know you were scaredd, but u felt so good, did u feel me a lil...too" and "was in u for a lil while, did you know that, yeahh u have tooo, ill make sure of it k, u are too precious to me, to get u hurt." Ms. Nevers interviewed S.C. on January 8 and 9, 2004. S.C. told Ms. Nevers that she and Dr. Medina had had sexual contact in September 2003 and that he had been sending her sexually explicit material. Between January 9, 2004, and January 18, 2004, Dr. Medina continued to send S.C. e-mails and instant messages containing sexually explicit comments and photographs. Ms. Nevers was present when these e-mails were being opened by S.C. and was present while S.C. drafted her responses and sent them back to Dr. Medina. A search warrant was issued to search Dr. Medina's office, and Dr. Medina gave permission to have his home computer searched. Dr. Medina's computers showed that he had been sending the sexually explicit e-mails to S.C. from his home and office computers. A search of the computers also revealed links to a multitude of web sites which appeared to cater in pornography, including teen pornography. On or about December 1, 2004, in case number 48-04-CF- 871-O/A in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Dr. Medina pled guilty to engaging in sexual activity with a person 16 or 17 years of age, and was sentenced to one year in jail, followed by five years of sex-offender supervised probation, to be followed by ten years of administrative probation. In addition to providing S.C. with medical advice concerning her collarbone in June 2003, Dr. Medina also gave S.C. medical advice during his communications with her between June 2003 and January 2004. He answered S.C.'s questions concerning a cyst on her neck that was found when a MRI was done; and gave advice about being a blood donor; and provided directions on getting over what he suspected were S.C. allergies, including drinking fluids, taking Nyquil, using a nasal spray, taking Vitamin C, and drinking orange juice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Medina violated Subsections 456.072(1)(u), 458.331(1)(c), 458.331(1)(j),and 458.331(1)(nn), Florida Statutes, and Florida Administrative Code Rule 64B8-9.008 and revoking his license. DONE AND ENTERED this 4th day of January, 2007, in Tallahassee, Leon County, Florida. S Susan B. Harrell 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 4th day of January, 2007.
