Findings Of Fact The Respondent, Thomas J. McQueen, is licensed in Florida as marriage and family therapist. He has a Ph.D. in psychology but is not licensed as a psychologist. On or about January 30, 1986, while practicing under his license as a marriage and family therapist, the Respondent had his first interview with the complainant in this case, who will be referred to as the client or complainant in this Recommended Order. The client had been referred to him for counseling as a result of the unexpected and unexplained death of her 19 year-old son. Abuse of the Therapy Relationship The client was suffering from major depression, single episode, categorized under 296.20 in the DSM-III manual for the diagnosis of mental and emotional illnesses. She worked part-time at her church, a Roman Catholic church in mid-Pinellas County, and had received consolation, expression of concern and understanding from her priests, coworkers and fellow parishioners there, but she was inconsolable. Worse, she reacted adversely to well- intentioned suggestions that the client interpreted as suggestions that she look for things God had given her to replace her son, such as her new son-in-law or, later, her new grandson. Seeing the severity of the client's grief, her priest referred her to the Respondent for counseling. The Respondent is a former Catholic priest. When he came to Florida in 1979, he introduced himself to the pastor of his parish and to other priests and became active in the Catholic Church in Pinellas County, including volunteer service on the board of directors of Catholic Social Services. He encouraged the church to support marriage and family therapy and make it available through Catholic Social Services. At the time the client first came to see him, he was conducting a private counseling practice out of offices in two area Catholic churches made available for his use free of rent and any overhead charges. The client first saw the Respondent in his office at a local Catholic church in north Pinellas County. The Respondent counseled effectively with the client. Not atypical of what happens in an effective therapist/patient relationship, especially in the earlier stages of therapy, the client thought the world of her therapist, the Respondent. She confided in him and looked to him for help and guidance in what for her was a most distressing time of her life. Using the words of the client herself, a deeply religious person, the Respondent was "a God" to the client. She looked at him as her savior. As she put it in a March, 1987, letter describing what she endured after her son's death: "There had to be a turning point, and since I no longer had the emotional strength to shift gears, there had to be someone else in the driver's seat. My counselor throughout my journey, Dr. Tom McQueen, took over the wheel, although I have no doubt that God was whispering directions to him." During his therapy, the Respondent tried to encourage the client to take a "pro-active" approach to her grief and to her life, in general. And, using theological concepts with which both of them were familiar, he also tried to explain to her that she should reject and discard the idea of "replacing" her deceased son and replace it with the idea of her son's "resurrection." After an initial short period when she found it difficult to function well in her normal daily work and activities, the most severe symptoms of her grief depression subsided, and the client was able to function adequately while therapy continued. Throughout her therapy, the client insisted, contrary to the Respondent's advice, that she see the Respondent only on an "as needed" or "as desired" basis. Her visits to the Respondent for formal counseling averaged a little more than one a month (although they were not regular monthly visits.) She was, and generally continued to be, a strong personality, capable of planning, organizing and implementing plans. She also continued to lead a busy life, as always, and she used this activity as a way of coping with her grief. However, maintaining a busy routine was only a temporary way of coping with her grief. In the eyes of some, it masked her grief depression. But the depression persisted, and she continued to show signs of her depression that could be detected by a trained therapist. Early on in counseling at the Respondent's counseling office at the north Pinellas parish, the client asked whether the Respondent saw clients closer to her residence in mid-Pinellas County. The conversation led to the Respondent's informing her that he had been trying for some time to persuade the Catholic Diocese to open what he considered to be a much needed counseling center in north Pinellas County, but his efforts had been to no avail. Thereafter, the subject came up from time to time during counseling sessions. By late August, 1986, no cause of her son's death had yet been ascertained. Finally, an autopsy report was released, which conflicted with an earlier report, and the client reviewed it. This caused more severe symptoms of her grief depression to recur. She suffered acute pain and hurt again, and she became terribly confused again. She had difficulty sleeping. On or about September 6, 1986, the client and her husband came in to see the Respondent. He did some additional testing, which confirmed that the client was "very depressed." He referred her to a licensed psychiatrist. The client saw the psychiatrist on or about October 9, 1986. He diagnosed the client's condition as "major depressive disorder (unresolved grief response, pathological proportions). He prescribed Ludiomil, an antidepressant, and referred the client back to the Respondent for continued supportive psychotherapy. The client had three or four more formal counseling sessions with the Respondent after the appointment with the psychiatrist--one in October, one in November and one or two in December, 1986. At the last of these sessions, the Respondent let the client know that, on that day, he himself was somewhat upset. He reported that he had just received notice that representatives of the Catholic Diocese were cancelling another meeting he had arranged to again try to persuade them to start a counseling center in north Pinellas County. The client's response was to ask whether the Respondent thought it would help if he could approach the Diocese with a $25,000 donation for use in establishing the center. She explained that she and her husband already had discussed and had decided to establish a charitable foundation in the name of their son, and it was her thought that the foundation could contribute to the financial support of the counseling center the Respondent was trying to persuade the Catholic Diocese to establish. She asked whether any other member of the Board of Directors of Catholic Social Services would be eligible to be director, and the Respondent replied in the negative. She fully concurred with the Respondent's desire that he be the director of the new center. She was very excited about the idea, which the Respondent himself characterized as a "whirlwind idea." The Respondent's first response to the client's offer of financial support was, appropriately, to decline. But his judgment immediately became clouded by the personal benefits he saw that he could derive from it. He quickly came to view the idea as the perfect opportunity to achieve his personal goals. He reconsidered and accepted, on the conditions that he would retain enough independence from diocesan control and that the Diocese, not he, would be responsible for the administrative and financial operations of the center. He wanted to be responsible only for providing counseling at the center, similar to his current arrangements for private counseling. He became very supportive of the idea and even encouraged the client to view the project as a way to "resurrect" her son. Consistent with this idea, on or about January 7, 1987, the anniversary of her son's death, the Respondent sent the client a card bearing the printed words: "I am the Resurrection. If anyone believes in me even though he dies he will live." The Respondent wrote on the card: "My family's prayer for yours today and each day is that the presence of your son will be forever renewed and resurrected in your lives." By the time of the next scheduled therapy session, the Respondent decided to end the client/therapist relationship to enable him to embark on the new "business relationship" between them as cofounders of the planned counseling center. He cancelled the session and instead suggested a walk in the park. He further discussed the client's idea with her and suggested to her that he now thought of her as "something more than just a client." He told her that she no longer needed counseling and that in the future their meetings would focus on the establishment of the center, the "resurrection" of her son. Having been led to believe that she was healed, the client discontinued her medication on or about December 25, 1986. The Respondent enthusiatically embraced and was swept along by the client's "whirlwind idea." The client left the state for the holidays in December, 1986, but by January 14, 1987, the Respondent himself had met with the Chancellor of the Diocese and had prepared a written proposal for submission to the Catholic Diocese. The proposal is authored by the Respondent and refers to the client and her husband as "the prospective donors." It describes the history of the Respondent's efforts to bring to fruition his "dream of establishing a 'Catholic Social Services North', if you will, to provide counseling services as well as programs in spiritual growth and development." The Respondent proposed March 1, 1987, as the target date for opening the new center. He arranged for the client to contact the Diocese to further discuss the project. Meanwhile, both the Respondent and the client began looking for appropriate offices to lease for the project. The client located offices and notified the Diocese. The Diocese recommended that the lease be postponed until the Diocese had completed its review of the proposal and reached a decision. Disappointed at the response, the client and the Respondent agreed that the client would enter into a lease effective on or about February 1, 1987, and would personally pay the $750 deposit and $750 a month, plus tax, rent until the planned center could officially open. It also was agreed that, in the meantime, the Respondent could conduct his private counseling practice in the leased space free of charge. The client personally, instead of the foundation, incurred these expenses because the foundation was restricted to contributions to charitable not-for-profit corporations and could not by law pay the rent for the Respondent's private counseling practice. By February, 1987, the client also prepared a proposal for submission to the Catholic Diocese on behalf of her and the Respondent. The client's proposal made it clear that the Respondent would serve as the Director of counseling center and addressed the Respondent's concerns regarding his independence from the Diocese. The Respondent and the client were disappointed with the diocesan response. At first, it seemed too slow to them. Then, at the end of February or beginning of March, 1987, they began to get indications that the Diocese was not comfortable with the Respondent's role in the proposal and that the Diocese thought the Respondent's projected salary of $50,000 a year was too high. The client sprang to the Respondent's defense. She thought that the Diocese was foolish for not appreciating the Respondent's talents and abilities. She immediately set out to put together information to prove to the Diocese what she thought should have been obvious--that the Respondent's education, background, experience and abilities amply justified the salary he would be getting. The Respondent directed her to information about him, including a resume, articles written about him and by him, and letters of recommendation for her to attach to her March 3, 1987, letter to the Diocese. Soon thereafter, before getting a response from the Diocese, the client and the Respondent became impatient and decided to start the counseling center without church sponsorship. They did, however, decide to ask the church for referrals, and the Diocese agreed that it would make referrals to the new counseling center. That decision having been made, the client approached her attorney and asked him to incorporate the Counseling and Development Center, Inc. (CDC). The not-for-profit corporation was set up with a six-member board of directors. The attorney suggested that two board member be Catholic priests, and they were able to get the agreement of two priests to serve on the board. The Respondent and the client also served on the board, along with a pediatrician friend of the Respondent and a business associate of the client's husband. On or about May 1, 1987, the Respondent closed his private practice, and the CDC opened its doors for business, with the Respondent serving as Director. As Director, in addition to counseling his own patients, he was to implement a marketing plan that included presentations to various church and community groups and was to recruit and supervise counselors and staff. Generally, his former clients became clients of the CDC, and their fees were paid to the CDC. The Respondent received his $50,000 a year salary. The client also was actively involved in the operations of the CDC, serving as its bookkeeper, financial planner and general office manager. Throughout this period of time, the Respondent continued to encourage the client to look at her involvement in the CDC as participation in the "resurrection" of her son. Around Christmas of 1987, the Respondent had a plaque made for hanging in the CDC. It dedicated the CDC to the memory of her son and featured a scripture verse on the Resurrection. He also sent the client a Christmas card that said in part: When we speak of Christmas 'presents,' this plaque does not fall into that category. However, when we speak of Christmas 'presence' we have a new and more meaningful reality. While no remembrance is sufficient to capture the meaning of a person's life, I would like this plaque to hang in the front office of the Counseling and Development Center so that those who pass through our doors will share in the healing that is born of the Resurrection. From May 1, 1987, through April, 1988, the foundation donated $60,000 to the CDC. From May 1 through October, 1988, another $25,000 was contributed. In about April, 1988, the client began to get concerned about the amount of cash contributions the CDC was requiring of the foundation in order to operate. She confronted the Respondent about it, and he responded by letter in part: Our conversation helped me to understand that I haven't made a very successful transition from the sailor of a private canoe to the captain of a much larger vessel! I need your help! . . . In the meantime, I will attempt to keep a better handle on the 'day-to-day' operations of our ministry. . . . Nothing is more meaningful to me tha[n] the continued success of what we have undertaken. If my vision is sometimes blurred and I don't see the way, I'll need you to hand me a pair of glasses! In May, 1988, the client called a dinner meeting with the staff to discuss the CDC's financial problems. It was decided that the pay for the CDC's staff counsellors would have to be reduced to $20 an hour from $25 an hour. The Respondent offered to the complainant that his salary be reduced but she responded that would not be necessary. It was not until October, 1988, that the complainant could bring herself to lay the blame for the CDC's problems on the Respondent. She became convinced that his management style was causing morale problems among the staff. More serious, she became convinced that he was not working hard enough for his salary and for the success of the foundation--her son's "resurrection." She had noticed that he did not seem to be physically present at the CDC very much. Records she was able to analyze indicated to her that, even giving the Respondent credit for a full day of work whenever he saw even just one client, it appeared to the complainant that the Respondent worked only 316 days out of a possible 540 workdays between May, 1987, and October, 1988. She suspected that he was working for himself on the side. In October, 1988, the complainant advised the Board of Directors of the CDC of the problems she then perceived and what she perceived as the Respondent's blame for them. She advised the Board that the foundation would not continue to support the CDC unless certain changes were made, namely that the Respondent be removed as Director and demoted to the role of staff counselor and that she be installed as interim director until the position could be filled. She pushed the Board for almost immediate action. Stunned by the ultimatum and feeling pressured, the other members of the board interviewed the CDC's employees to try to ascertain the true facts and met several times in November, 1988, and proposed a compromise to the Respondent and the complainant. The complainant rejected the compromise out of hand. In early December, 1988, the complainant left the CDC and formed the Counseling Services Center, Inc.(CSC), to compete with the CDC, and on or about December 28, 1988, the CDC board formally voted her off the CDC board of directors. In fact, the Respondent knew, or should have known, that the client was not "healed" in December, 1986, when he agreed to accept the benefits of her proposal to use her son's foundation to establish a counseling center headed by the Respondent. Her grief remained unresolved and led to such emotional pain on her son's birthday, mother's day and Christmas, her son's favorite holiday, that she refused to celebrate those holidays. A de facto client/therapist relationship continued even after formal counseling ceased. As the client herself explained it in a November 18, 1986, card she sent to the Respondent: "I am on my way to the finish line now, but I know there are obstacles and hurdles still ahead of me. I pray that I'll have the strength to get over them, and that you'll be there to help me if I fall." Even if it were appropriate to terminate the client's formal therapy in December, 1986, it is clear that, despite her continuing considerable talents and abilities to make business decisions and implement them, the client was not at that time, or for many months to come, able to deal with the Respondent as an equal in a true arm's length business transaction. When it came to looking at the Respondent, the client saw through rose-tinted glasses. In her eyes, he could do no wrong. The Code of Ethical Principles for Marriage and Family Therapy of the American Association for Marriage and Family Therapy (AAMFT), of which the Respondent is a member, sets out certain ethical standards which constitute minimum standards of performance in professional activities when measured against generally prevailing peer performance. The Code includes the following principles: Marriage and family therapists are cognizant of their potentially influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore make every effort to avoid dual relationships with clients that could impair their professional judgement or increase the risk of exploitation. Marriage and family therapists do not use their professional relationship with clients to further their own interests. 1.6 Marriage and family therapists assist person in obtaining other therapeutic services if a marriage and family therapist is unable or unwilling, for appropriate reasons, to see a person who has requested professional help. The Respondent violated these ethical standards and, in so doing, did not measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. (See Findings 3- 34, above.) He should have counseled his client against acting on a "whirlwind idea" but rather encouraged her to slow down and deliberately evaluate the idea and, if necessary, delay making any decision, to be sure she was not acting irrationally as a result of her grief-induced depression. If she insisted on going forward with the idea, he should have declined to accept the benefits of the directorship. The Respondent also failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by discussing his personal goals and frustrations during therapy. (See Findings 8 and 12, above.) Having decided to endorse the complainant's "whirlwind idea" and to accept the directorship, the Respondent also failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by not referring the client to another therapist for continuing therapy when he terminated formal therapy. Representations Concerning Respondent's Credentials The Respondent, while the holder of a Ph.D. degree in psychology, is not licensed as a psychologist. His only licensure is his Florida license as a marriage and family therapist. The AAMFT Code of Ethical Principles includes among its principles: 6.4 Marriage and family therapists are careful to represent facts truthfully to clients and third party payors regarding services rendered. 7.1 Marriage and family therapists accurately represent their competence, education, training, and experience relevant to their practice of marriage and family therapy. Marriage and family therapists assure that advertisements and publication, whether in directories, announcement cards, newspapers, or on radio or television, are formulated to convey information that is necessary for the public to make an appropriate selection. Marriage and family therapists do not use a name which could mislead the public concerning the identity, responsibility, source, and status of those practicing under that name and do not hold themselves out as being partners or associates of a firm if they are not. 7.6 Marriage and family therapists correct, wherever possible, false, misleading, or inaccurate information and representations made by others concerning the marriage and family therapist's qualifications, services, or products. When the complainant was referred to the Respondent for counseling, the priest who recommended the Respondent gave the complainant the impression that the Respondent was a psychologist. But it was not proven that the Respondent knew what the priest had told the complainant. Nor was it proven that the Respondent himself ever told the complainant that he was a psychologist. The evidence was only that the Respondent informed the complainant in the course of conversation and via written materials that he had obtained a Ph.D. degree in psychology. Also, on one occasion, as part of the start-up of the CDC, the complainant informed the Respondent that she had arranged to have the CDC listed in the telephone book under "Psychologists." Without explicitly explaining why, the Respondent had the complainant change the listing to the heading, "Marriage and Family Therapy." The Respondent's Florida license as a marriage and family therapist hung on the wall of the office in which he counseled the complainant. Also on display in the office was the Respondent's Pinellas County occupational license, which identified him as a marriage and family therapist. Nothing on display in the office referred to the Respondent as a psychologist although his Ph.D. diploma would have indicated that his degree was in psychology. When the complainant came into the CDC offices in March 3, 1987, looking for information to buttress her argument to the Catholic Diocese that the Respondent was well worth his projected $50,000 a year salary, the Respondent directed her to written materials in a binder on a bookshelf in the hall just outside his office. Cf. Finding 20, above. The written materials which the complainant found in the binder and attached to her March 3, 1987, letter to the Diocese included the Respondent's resume, which set forth the Respondent's licensure only as a marriage and family therapist and otherwise accurately reflected the Respondent's education, training and experience. They also included two newspaper articles written about the Respondent in which the Respondent was referred to as a psychologist or was referred to by the title of the position he held with Pinellas County in the early 1980s--psychological consultant. They also included one article written by the Respondent in the same time period in which he referred to himself as a psychologist. There also were letters of reference concerning the Respondent which referred to him as a psychologist. There was no evidence that the Respondent knew what material the complainant had seen in or had selected from the binder on the bookshelf. There also was no evidence whether the Respondent had corrected the information contained in the letters of reference or whether he ever used the letters of reference. The evidence did not prove that the Respondent had reason to know that the complainant thought he was a licensed psychologist. (The evidence indicates that the complainant was more familiar with the term "psychologist" and focused on that designation, not appreciating the significance of the distinction between a licensed psychologist and a licensed marriage and family therapist. Part of the problem seems to arise from the apparently permissible use of the prefix "Dr." by Ph.D.'s in psychology whether or not they are licensed in Florida as psychologists. 1/ ) The evidence did not prove that the Respondent violated the principles of the AAMFT Code of Ethical Principles cited in Finding 40, above. The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by misrepresenting his credentials to the complainant or by failing to clarify or correct what he knew or should have known to be a misapprehension of his credentials by the complainant. Maintenance of Complainant's Patient Records Principle 2.3 of the AAMFT Code of Ethical Principles provides: Marriage and family therapists store or dispose of client records in ways that maintain confidentiality. When the CDC opened for business on May 1, 1987, the Respondent kept his active and inactive files from his private practice, including the complainant's file, in the CDC offices. He made an effort to keep the complainant's files separate from the active files of the CDC but there were two occasions when his secretary saw the complainant's file on the Respondent's desk. One time, when the secretary was about to put the complainant's file among the CDC files, the Respondent happened to return to his office and told his secretary that the complainant's file would not be kept at the CDC. On or about January 17, 1989, the complainant requested a copy of her records from her private counseling sessions with the Respondent. The Respondent replied by letter dated January 19, 1989: (1) stating that the staff counselors, who resigned effective December 15, 1988, and were hired by the complainant's CSC, removed active and inactive CDC files to the CSC; and (2) suggesting that the complainant's file may have been among them. However, each CDC staff counselor kept his or her client files in a locked filing cabinet to which only the counselor had access. They did not take the complainant's file. Through a February 6, 1989, letter from the Respondent's attorney, the Respondent responded that he had not been able to find the complainant's file. The letter indicated that the complainant's file was stored together with CDC inactive files, to which the complainant and the CDC staff counselors had access. The letter suggests that the complainant's file could have been removed either when the complainant and her representatives removed all her belongings on December 3, 1988, in the Respondent's absence, or when the three staff counselors who left the CDC and were hired by the CSC removed their files approximately two weeks later, also in the Respondent's absence. Yet, at final hearing, the Respondent conceded that it would be inappropriate for him to store the complainant's file in a place where it would be accessible to the CDC staff counselors. In addition, the February 6, 1989, letter states that the Respondent was actively treating private patients, whose records were being maintained in the Respondent's private office at the CDC, which he denied at final hearing. On July 7, 1989, the complainant again demanded the return of her file. By letter dated July 27, 1989, Respondent's attorney replied, again denying that he had the file and suggesting that the complainant herself may have taken it. At hearing, the Respondent testified that he understood the complainant had the keys to all locks at the CDC and therefore had access to her file, which he thought was in a locked drawer in his office. But the testimony of the three CDC staff counselors who left to join the CSC was that the complainant did not have a key to the locked file cabinets where they kept their active client files. It was not clear from the evidence what happened to the complainant's file. It is clear, however, that the Respondent has not been able to locate the complainant's file, was unable to return it or a copy of it on demand, and did not adequately safeguard the file and the confidentiality of its contents. This was a violation of AAMFT Ethical Principle 2.3 and constituted a failure by the Respondent to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by undertaking activities for which he was not qualified by training or experience. First, the evidence shows that the Respondent never undertook to perform financial or general management duties for the CDC. Second, it was not proven by a preponderance of the evidence that he did not or could not perform the duties which he did undertake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Marriage and Family Therapy enter a final order fining the Respondent $1,000 and suspending his license for one year, to be reinstated at that time subject to the completion of continuing education specified by the Board in the area of professional ethics, if available, and subject to one year of probation. RECOMMENDED this 5th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1990.
The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this matter, Respondent Robert S. Colen was a licensed mental health counselor, holding Florida license MH 0001546. The Respondent’s business address is 800 Belcher Road, North, Suite 1, Clearwater, Florida 34625. The Respondent was trained in a form of mental health counseling identified as “Gestalt” or “humanistic” therapy. Such therapy includes physical, non-sexual, touching, such as hugs. There is no credible evidence that therapeutic touching within a counseling relationship is inappropriate. A number of the Respondent’s clients testified that he almost always hugged them at the end of the counseling session. The only witness who testified that the Respondent did not hug was a male patient who indicated that he was not inclined to permit the Respondent to hug him. Other than the three patients identified herein, none of the witnesses regarded the hugging as sexual, and none seemed at all offended by the physical contact. Patient M. C. Patient M. C. was referred to the Respondent by Dr. Michael Gemino, the patient’s psychiatrist. At the time of the referral, M. C. was diagnosed with bipolar disorder, alcohol abuse, and passive aggressive disorder. She was referred to the Respondent for counseling related to alcohol addiction and co-dependency issues. During the course of therapy, the Respondent began to hug M. C. as he did many of his other patients. At some point during the therapy, a discussion of different types of “love” occurred. Based on that discussion, M. C. apparently became convinced that the Respondent was in love with her and she with him. At some point during the counseling, the Respondent and M. C. began to experience some type of emotional involvement which exceeded the typical counselor-client situation. There were extended periods when the Respondent held M. C. in his arms as she recounted painful experiences she had suffered. M. C. asserts that the Respondent told her that he loved her and that beginning in February 1994, she engaged in sexual activity with the Respondent. She asserts that the two would lie on pillows on the floor of his office, that the Respondent would touch her unclothed genital area with his hands and mouth, and that she would perform fellatio on the Respondent. In about July 1994, M. C. reported the alleged sexual activity to Dr. Gemino, who referred her to Kerry Kushmick, an unlicensed individual apparently working with Dr. Gemino. Mr. Kushmick met with the Respondent and M. C. to discuss the matter. Although M. C. repeated her allegations, the Respondent denied any sexual contact, but acknowledged that the two were in a "psychological cocoon,” that he was "in over his head," that he should have terminated therapy earlier, and that there were some “boundary” issues which needed resolution. The evidence fails to establish that the Respondent engaged in sexual activity with M. C. The recollection of M. C. as to times and circumstances under which the sexual activity occurred lacks credibility. The Respondent’s office was located immediately adjacent to a public waiting area which served a number of professional offices. The receptionist’s desk in the waiting area was located next to the Respondent’s office. The walls in the office suite were poorly insulated and sound traveled from the offices into the waiting area; however the receptionist testified that she heard nothing indicating any sexual activity ever took place in the Respondent’s office. She also testified that the door to the Respondent’s office closed improperly and would not lock. The evidence establishes that the Respondent did not maintain an appropriate therapeutic relationship with M. C. The Respondent did not recognize that transference and counter- transference were occurring, and did not timely seek assistance to resolve the situation. The Respondent's failure to recognize the developing situation with M. C. was detrimental to her mental condition and constitutes a failure to meet minimum standards of performance as his professional activity. At some point after M. C. spoke to Dr. Gemino, he provided to her the names of other patients whom he had referred to the Respondent for counseling. M. C. met separately with J. M. and R. P. They discussed the interactions with the Respondent. The former patients continued to maintain contact for a period of time after the initial meeting. At the hearing, J. M. and R. P. expressed concern regarding the emotional condition of M. C. Patient J. M. In about October 1993, J. M. was referred to the Respondent by Dr. Gemino, the patient’s psychiatrist. At the time of the referral, J. M. was diagnosed with bipolar disorder. She was referred to the Respondent for marital therapy, after having been involved in sexual relations outside her marriage. J. M. attended initial counseling session with her husband. She attended subsequent sessions without her husband. She also participated in group therapy at the Respondent’s office. J. M. dressed in a “seductive” manner for counseling sessions, frequently wearing very short shorts. At one time, after a group therapy session, the Respondent received a complaint from another patient regarding J. M.’s attire during counseling, stating that she was sitting on a pillow on the floor, was not wearing underwear, and was exposing herself. J. M. testified that she did not wear underwear during the group therapy and further acknowledged that she was not wearing underwear at the time of her testimony. J. M. asserts that during the initial counseling session, while her husband was out of the room, the Respondent told her she was attractive. J. M. asserts that during subsequent session, which she attended alone, the Respondent would lie on the pillows with her, touch her, tell her she was beautiful and call her his “soul mate.” She asserts that the Respondent was always touching her and kissing her. The evidence fails to support the assertions J. M. asserts that the Respondent purchased gifts for her. The Respondent acknowledged that he may have purchased some type of tape for her, but there were not multiple gifts. J. M. asserts that he did not charge for all sessions. The Respondent acknowledged that he did not charge for all her sessions and said that is frequently the case when a patient is undergoing financial difficulty. J. M. testified that the Respondent told her she should take a test for the AIDS virus. She believed that the Respondent made the suggestion for the purpose of determining her health status prior to engaging in sexual relations with her. The Respondent testified that he made the suggestion based on her sexual activity outside her marriage and the fact that she was referred to him for marital counseling. Despite having been interviewed by an investigator for the Department, J. M. testified for the first time at the hearing that the Respondent told her he was going to “lick her pussy like you’ve never had it before.” There is no credible evidence that the Respondent made the statement. J. M. terminated her therapy with the Respondent because he indicated she needed to pay him some of the money she owed from the counseling. The evidence fails to establish that the Respondent acted inappropriately in his interaction with J. M. Patient R. P. The Respondent provided therapeutic counseling to R. P. from January to March of 1988. At the time of the 1988 counseling, R. P. was being treated for an inability to accept affection. From August to October 1991, the Respondent engaged in a second round of therapy with R. P. She was depressed, lacked a social support system, and was dependent on prescription pain medication. She was also involved in a difficult relationship with her mother. There were only four sessions during the 1991 round of therapy. During the second round of therapy, the Respondent encouraged her to bring her mother to counseling (her mother declined.) The Respondent hugged and touched R. P during the sessions, told her she was special and a valuable person. R. P. had expressed concern about being able to be physically affectionate with a man. Part of the Respondent’s plan of therapy was physically hugging or holding R. P. in a manner intended to permit her to become comfortable with such attention in a non-threatening environment. Some of the hugs lasted for up to 15 minutes. Depending on the mental status of the patient, a 15 minute hug, while unusual, is not necessarily inappropriate. R. P. asserts that the Respondent told her she was his “soul mate” and discussed sexual relations with her. She asserts that he told her he had feelings about her which he had not experienced with other patients. The evidence fails to support the assertion. After R. P. stopped attending the sessions, she received two letters from the Respondent, the second of which made her feel “threatened.” He also called R. P. several times. R. P. believed he was trying to make her feel guilty. The Respondent asserts that he was concerned about her discontinuation of therapy and the fact that she owed him money. The evidence fails to establish that the Respondent acted inappropriately in his interaction with R. P.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a Final Order imposing a fine of $1,000 on, and issuing a public reprimand to, Robert S. Colen. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Anne Cox, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32317-4229 Louis Kwall, Esquire Kwall & Showers, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Lucy C. Gee, Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated Sections 491.009(2)(k), and 491.009(2)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent held a license as a Mental Health Counselor in the State of Florida. Petitioner, through the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Respondent was employed as a counselor by the ACT Corporation (ACT) at the time of the incident that is the basis for this case. ACT operates a residential psychiatric treatment facility at which Respondent was employed. T.J. was a patient in the ACT facility from December 26, 1996 until mid-February, 1997. While at ACT, T.J. was diagnosed with bipolar disorder. T.J. had both group sessions and private sessions with Respondent while she was an in-patient at ACT. The private sessions took place in Respondent's office. Respondent and T.J. talked on the telephone, and he brought her small items, like lip-gloss and gum, that she was not allowed to have. T.J. alleges that the sessions became sexual on or about the second private therapy session. She alleges sexual contact during the in-patient sessions involved kissing and touching, that was consensual. T.J. states that she trusted Respondent and was in love with him. T.J. alleges this sexual relationship with Respondent continued after T.J. left ACT in February. There was never a therapeutic relationship between Respondent and T.J. after T.J. left the hospital. There was never any discussion of a fee arrangement, and no fees were ever paid for counseling sessions. Two days after T.J. left ACT, Respondent picked her up from her home and took her to Sapporo's for dinner and drinks. Following dinner, they went to a bar called the Barracks. T.J. alleges that when Respondent brought T.J. home that night they engaged in oral sex and intercourse. A few days later, T.J. and Respondent met for dinner at the Olive Garden. At the Olive Garden they had dinner and drinks. T.J. alleges that following dinner, Respondent walked T.J. to the van she was driving, they kissed and then had sexual intercourse in the van. On Valentine's Day Respondent came to T.J.'s house for dinner. T.J. lived with her parents. He brought her flowers and a bottle of wine for her parents. A card accompanied the flowers that said: "Sorry! No candy. Hope this will do instead." The envelope said "Traci." Following dinner, they went out to the Flagler Tavern. T.J. alleges that when they returned to T.J.'s house Respondent stayed until early morning and they had oral sex and intercourse. Respondent denies any sexual intimacy with T.J., and asserts that their relationship was one of patient-therapist even after she left ACT. T.J.’s testimony was presented by deposition. There was no opportunity to observe her. She was diagnosed contemporaneously with the events to which she testified with a condition that makes her credibility difficult to assess. Respondent testified at hearing denying the sexual relationship with T.J. I do not find the deposition testimony of T.J. credible regarding the allegations of sexual relations with Respondent. I find that there was a relationship between Respondent and T.J. because Respondent verifies the social contacts T.J. reported. Respondent did not perform any counseling with T.J. on the various occasions when they went to the bars and restaurants. This relationship was inconsistent with existing standards of professional conduct, as testified to by experts at hearing and exemplified in the code of ethics which ACT had. T.J. continued therapy as an outpatient with another ACT therapist for a short time after she was released from the hospital. During one of these sessions, T.J. told the outpatient therapist about her social/personal relationship with Respondent. Shortly thereafter, ACT fired Respondent for violation of ACT's code of ethics. This code prohibited personal relationships between patients and employees of the facility. Respondent had his Florida Teaching Certificate permanently revoked when he worked as a counselor at Deland Senior High School. He was charged with sexual misconduct with a student, and did not contest the charges formally. Psychotherapy is dependent upon a personal relationship between the patient and the therapist. Patients often develop emotional relationships or attachments to counselors or therapists because of the creation of an environment of trust. It is important that therapist recognize that this relationship is an outgrowth of treatment, and not to take advantage of the patient. Respondent had a relationship with T.J. that is contrary to the professional standards of practice, notwithstanding the allegations of sexual misconduct. His professional relationship should have been confined to the clinical setting, and the social activities in which he engaged with T.J. were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order adopting this order and revoking Respondent’s license and assessing a fine of $1,000 against him pursuant to Rule 64B4- 10.002 formerly 59P-5.001, Florida Administrative Code, the Board's penalty guidelines. DONE AND ENTERED this 17th day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of May, 2001. COPIES FURNISHED: Ismael Lopez 13691 Gavina Avenue, No. 447 Sylmar, California 91342 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue at the hearing was whether Respondent's license as a psychologist should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 490, Florida Statutes (1982 to 1986).
Findings Of Fact The Respondent, Frank Brown, PH.D, is a licensed psychologist in the State of Florida, license number PY 2079. He has been a member of the American Psychological Association since 1973. He was first licensed to practice in Florida in 1976 and has practiced psychology in Pensacola, Florida, for the duration of that time. Since the statutes regulating psychologists in Florida, Chapter 490, Florida Statutes, was repealed in 1979, Dr. Brown was not licensed from 1980 to March or April of 1982. The re-licensure was required by enactment of a new Chapter 490, Florida Statutes, effective January 1, 1982. Respondent received his bachelor's degree in psychology in 1966. His masters and doctoral studies specialized in clinical psychology. He received his PH.D in clinical psychology in 1971. Respondent has practiced as an out- patient therapist at the Community Mental Health Center in Pensacola, served as director of training for the Mental Health Center, served as director of the District Mental Health Board, served as staff psychologist for the Rehabilitative Institute of West Florida, taught psychology at the University of West Florida and Troy State University, and has served as a psychologist for the Division of Blind Services. Respondent has an excellent reputation in the Pensacola community as a competent psychologist and, in 1985, was recognized as an outstanding health provider in a professional category for his disability evaluations. Additionally, Respondent has published several articles on headache and management of multiple personality disorders. Apart from his professional career, Dr. Brown, in 1978-1979, was a devout Christian and maintained very close connections with his church. He was excited about his church and discussed its merits openly with other people. R.B. first met Dr. Brown in June of 1978 when she contacted him about difficulties she was having with an overbearing mother. She was seeking a Christian counselor and Respondent was recommended to her as fulfilling that role. Her first appointment with Dr. Brown for counseling occurred on June 15, 1978. R.B. was diagnosed by Respondent as sufffering from major depression- single episode, precipitated by R.B.'s interactions with her mother. The last counseling session occurred on November 28, 1979. 1/ R.B.'s therapy was terminated successfully. Respondent's psychologist/client relationship was with R.B. and did not include her husband. The interest demonstrated by R.B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R.B. He met with R.B.'s husband in order to make R.B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/client relationship with R.B.'s husband and, although the husband paid R.B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R.B.'s therapy. The other contacts, referenced by R.B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R.B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the R.B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. These years later contacts with Respondent simply do not constitute sufficient substantive evidence from which one could infer a psychologist/client relationship was intended, or had, in fact, occurred between Respondent and R.B.'s husband. See DPR v. Lombillo, DOAH Case No. 86-3650 (Final Order, October 30, 1987). Sometime after the therapy began, R.B. and Respondent had discussions regarding religion. Respondent, either suggested or, through his own excitement over his church, left the impression that she might get more out of his church. Respondent had a great deal of confidence in his church and the Christian abilities of the pastor of that church. Around August or September, 1979, R.B. and her family began attending Respondent's church. As often happens when two families know each other, frequent the same locations and participate in the same activities, Respondent's family and R.B.'s family became close. The social relationship began slowly with church activities such as Bible study. R.B.'s therapy was in the process of being terminated and was terminated within two months of R.B.'s first attendance at Respondent's church. After therapy the two families' interactions grew. The relationship was one of friendship and was not in and of itself a dual relationship which would be unethical. At this point, the stronger feelings of love had not mutually developed. 2/ The one fact that the evidence clearly demonstrated in this case was that Dr. Brown fell in love with R.B., a former patient. R.B. reciprocated that love. Unfortunately, both individuals were married to other persons and had children from those marriages. The children were close in age. The affair began in February, 1980, approximately two months after R.B.'s therapy had terminated. R.B.'s therapy was unrelated to her relationship with men or sexual problems. The romance lasted for seven years. The evidence was insufficient to demonstrate clearly and convincingly that the romance had its aegis in or any connection to R.B.'s therapy sessions. The evidence suggests that the romance actually evolved from seeing R.B. in the church setting, apart from any therapuetic relationship. There was no credible evidence that the romance developed because of the Respondent's desire to take advantage of or abuse the theraputic relationship he had with R.B. As stated earlier, this romance was heartfelt and genuine. Both parties freely entered into the liaison. The evidence did not suggest that R.B. lacked any freedom of choice due to some overriding psychological problem in entering into her relationship with Respondent. On these facts, the romance's development was not an unethical act on the part of Dr. Brown and did not constitute an act which would fall below the minimum standards of practice in the Pensacola area. 3/ Importantly, Chapter 490, Florida Statutes, was repealed prior to the beginning of Respondent's romance with R.B. The practice of psychology remained unregulated until 1982 when a new Chapter 490 became law. Clearly, by the time the new chapter took effect, Respondent's romance with R.B. was completely unrelated to any therapy she had undergone in 1979 and cannot be retroactively considered to be an act which fell below the minimum standards of practice in the Pensacola area. There simply were no legally enforceable standards during those years which could be the subject of a disciplinary action after licensure. See Taylor v. DPR, 534 So.2d 782 (Fla. 1st DCA 1988). 4/ At first, the relationship was not sexual. However, after about six months, it developed into a romantic, sexual relationship. As the romance progressed, both individuals sought counselling due to their feelings of guilt over their adultery. Somewhere around 1984, R.B. and Respondent had agreed to divorce their spouses so that they could wed. Respondent kept his part of the agreement and separated from his wife in late 1984 and finalized the dissolution of marriage in late 1985. R.B. had second thoughts and did not divorce her husband. Beginning around 1985, Respondent shared an unspecified number of Desyrel tablets with R.B. when she requested such medication. Desyrel is a regulated drug, similar to valium. It cannot be obtained without a prescription. Respondent had a prescription for Desyrel from another physician. The Desyrel he shared with R.B. was from the amounts he had obtained through his prescription. The medication was generally shared in small quantities. 5/ On February 13, 1987, Respondent gave R.B. a bottle of Desyrel. The Desyrel was from the medication he had obtained from his prescription. There was insufficient evidence presented to determine the quantity of Desyrel contained in the bottle. The evidence suggests that R.B. mixed the Desyrel with some of her own. Neither the procurement of the Desyrel by Dr. Brown nor the sharing of the medication with R.B. was related to Dr. Brown's practice of psychology. Such sharing of medication is not unusual between loved ones. There is nothing in the evidence which suggests that Respondent should be held to a higher standard than an ordinary person in regards to this type of activity. Ordinary conduct cannot form a basis for discipline absent some tie to Respondent's practice of psychology or some specific regulatory prohibition. No specific prohibitions exist in this case. 6/ The relationship, but not the mutual feeling of love, between Respondent and R.B. was interrupted only upon discovery of the affair by R.B.'s husband in October, 1987. The discovery by her husband caused R.B. to decide that her marital and family obligations and responsibilities were not compatible with maintaining her relationship with Dr. Brown. However, R.B. was very mixed about discontinuing the affair. She continued to contact Dr. Brown and they continued to meet when they could for several months after the initial discovery. She would become angry if Dr. Brown saw other women. She broke his heart and in the process broke her own. By February 20, 1980, R.B. had torn herself apart enough to attempt suicide by drinking alcohol all day and taking an overdose of Desyrel tablets she claimed to have obtained from Dr. Brown. Learning the identity of the women Dr. Brown had been dating was the immediate precipitating event. After taking the pills, she decided she wanted to live for her children and informed her husband of her actions. He took her to the hospital and had her stomach pumped. Because of R.B.'s unwillingness to accept responsibility for her lengthy romantic liason with Respondent and in desperation to save her own marriage she filed a complaint against Respondent with Petitioner. 7/ The evidence did not demonstrate any nexus between R.B.'s earlier therapy and her actions on the evening of February 20, 1987. Too much time had passed and too many other events had intervened to allow such a connection to be inferred from an affair which began after that therapy had ended seven years earlier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint Against Respondent. DONE and ENTERED this 14th day of May, 1990, in Tallahassee, Florida. DIANE 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 14th day of May, 1990.
The Issue Is Petitioner, Marion J. Gwizdala, entitled to issuance of a license as a registered mental health counselor intern under section 491.0045, Florida Statutes (2013).1/
Findings Of Fact Based on the evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Mr. Gwizdala seeks licensure as a registered mental health counselor. Throughout the licensure process and in this proceeding, Mr. Gwizdala has acknowledged that he has two criminal convictions which may be grounds for denying his licensure application. Throughout the process and this proceeding, because of the convictions, Mr. Gwizdala has only sought a license that limits him to serving only adults. On August 27, 2013, the Board issued a Notice of Intent to Deny Mr. Gwizdala's application for licensure as a registered mental health counselor intern because of the two criminal convictions. The Board found that Mr. Gwizdala's crimes directly relate to the practice of, or the ability to practice, mental health counseling, grounds for denial of a license under section 491.009(1)(c).2/ The first crime resulted in a 1976 judgment against Mr. Gwizdala based on his plea of guilty to attempted lewd assault on his neighbor, an 11-year-old boy. Mr. Gwizdala completed five years of probation for this offense. The second crime resulted in a 1985 judgment against Mr. Gwizdala based on his plea of guilty to two counts of lewd assault on two boys under the age of 14. Mr. Gwizdala fondled, masturbated in front of, and provided alcohol and pornography to the two boys. He served six months of a one-year prison sentence for that offense and spent another ten years on probation. Mr. Gwizdala has not been convicted of any crime since 1985. As part of his sentence for the 1985 conviction, Mr. Gwizdala completed three years of mandatory treatment at the Florida Mental Health Institute's Center for the Prevention of Child Molestation. He voluntarily underwent additional treatment at the Sexual Abuse Treatment Center for approximately one and one-half years. Mr. Gwizdala has not undergone any treatment since. However, his later training in counseling involved self-reflection similar to treatment. In 1993, the Florida Department of Education, Division of Blind Services (DBS), required Mr. Gwizdala to undergo a mental health evaluation to determine whether DBS should fund his education in counseling. Dr. Leo P. Cotter conducted the mental health evaluation. The evaluation consisted of approximately five hours of clinical interviews with Mr. Gwizdala and a review of collateral materials. The materials included a letter of recommendation from Sharon M. McElvoy, Sexual Abuse Treatment Services; results of a Minnesota Multiphasic Personality Inventory Test administered to Mr. Gwizdala; and Mr. Gwizdala's Department of Corrections file. At the time, Mr. Gwizdala was under community supervision by the Department. Dr. Cotter compiled a report of his findings. He noted Mr. Gwizdala's "long history of sexually abusing children," but found that Mr. Gwizdala "appears now to have the coping skills to deal with his personal problems in legal, healthy ways." Dr. Cotter concluded that Mr. Gwizdala's goal of becoming a mental health counselor was "realistic," provided that Mr. Gwizdala limited his practice to adults and not treat children under any circumstances. DBS provided Mr. Gwizdala's funding for his counseling education. Mr. Gwizdala obtained his bachelor's degree in psychology from the University of South Florida in 1993 and his master's degree in counseling from Nova Southeastern University in 1997. Mr. Gwizdala has practiced as a hypnotherapist since approximately 1994. He restricts his practice to adults because he knows it would be inappropriate for him to treat children. Mr. Gwizdala has been active in community service for many years. He founded and has worked extensively with the Tampa chapter of the National Federation of the Blind. He has also volunteered with the National Association of Guide Dog Users. At the National Federation of the Blind Florida State Convention in 2007, which he helped host, Mr. Gwizdala initiated a "safety plan" to ensure that he was never on the same floor as any of the children attending the convention. That included locating the children's activities and day care on a different floor than the floor on which his activities occurred. Mr. Gwizdala disclosed his past and arranged the "safety plan" on his own. Mr. Gwizdala has served as the music director for his church since 2007. In August 2012, the church began to receive emails regarding Mr. Gwizdala's past. In response, he voluntarily suggested and, with the church, implemented a "safety plan" to ensure that he was never alone with children. In April 2013, Mr. Gwizdala and Reverend Virginia Walsh, his employer at the church, disclosed his criminal past to the entire congregation. Reverend Walsh is not aware of any complaints about Mr. Gwizdala's behavior during his time at the church. Mr. Gwizdala has been open and honest about his criminal history with friends, colleagues, employers, and his wife. Testimony and letters of reference from several people attest to his good character. The recommendations from Mr. Gwizdala's friends and associates are not superficial or inconsequential. He has known or worked closely with them for many years, in some cases as many as 20 years. The witnesses who testified on his behalf uniformly claimed that Mr. Gwizdala had never acted inappropriately around them. The references are persuasive and credible. In 2013, Mr. Gwizdala applied to the Board for licensure as a registered mental health counselor intern. On his application, Mr. Gwizdala disclosed his convictions. Because of his disclosure, the Board required Mr. Gwizdala to submit documentation about his crimes and undergo a mental health evaluation. The Board forwarded his file to the Professional Resource Network (PRN), which referred Mr. Gwizdala to Dr. Barbara Stein for evaluation. On July 9, 2013, Dr. Stein interviewed Mr. Gwizdala for two and one-half hours, administered two psychiatric tests, and referred Mr. Gwizdala for a polygraph test and drug screening. Dr. Stein compiled a report of her findings. She noted that Mr. Gwizdala understood the influential and powerful role of the therapist and knew it was wrong to have a sexual relationship with a patient. Dr. Stein also noted that he was a bit unclear on the "do's and don'ts" of non-sexual boundary crossing, like hugging. She concluded that Mr. Gwizdala "does not currently have any psychiatric impairment that prevents him from being able to safely become licensed as a mental health counselor intern treating adults only." Her report also suggested that Mr. Gwizdala engage in a course on professional boundaries and enter into a professional boundaries contract with PRN. On August 27, 2013, the Board issued a Notice of Intent to Deny Mr. Gwizdala's application for licensure based on his criminal convictions. He appealed. On October 24, 2013, Mr. Gwizdala appeared before the Board and presented evidence, including the reports of Dr. Cotter and Dr. Stein. The Board voted and split 4-4, which upheld the Intent to Deny. Mr. Gwizdala moved for reconsideration of that decision, which the Board denied. This proceeding followed. The Board does not maintain that Mr. Gwizdala is otherwise unqualified for a license under the requirements of section 491.0045. Dr. Sherrard, the Board's expert and a former Board member, testified at the final hearing that he would not grant Mr. Gwizdala a license. He based his opinion on the reports described above and their underlying documentation. Dr. Sherrard was concerned about the possibility that Mr. Gwizdala might succumb to a desire to offend again with children. As Dr. Sherrard testified and Mr. Gwizdala acknowledged, Mr. Gwizdala will always be vulnerable to the motivations that drove him to commit his crimes. Mr. Gwizdala's awareness of those motivations helps him stay vigilant against reoffending. Dr. Sherrard fears that, if licensed, Mr. Gwizdala might put himself in a position to reoffend by treating children. But, as Dr. Sherrard testified, Mr. Gwizdala is not a high risk to reoffend as recidivism rates for similarly-situated offenders are generally low. Dr. Sherrard described his apprehension like this: Well, it [the risk of recidivism] doesn't even have to be 18 percent. It could be 1 percent. I just would hope that he wouldn't put himself back in that position again, and my concern about granting the license is that we helped to put him back in that position again, partially because once you have a license it does not--inherently, the license does not restrict your practice. Dr. Sherrard credibly testified that Mr. Gwizdala should have "additional insight as to what drives this behavior." Mr. Gwizdala has practiced as a hypnotherapist for almost two decades without incident. He has limited his practice to adults because, in his words, "it would just be simply--to be candid, it would be inappropriate for me to treat a child." Therapy is an intimate practice where patients are in vulnerable positions. In therapy, there is a presumption of safety. Maintaining trust and boundaries is paramount. Mr. Gwizdala's crimes directly relate to the practice of mental health counseling because they were committed against vulnerable children and demonstrate repeated violations of trust and boundaries. Similarly, the tendencies that spurred Mr. Gwizdala's criminal behavior undermine his ability to practice as a mental health counselor intern without restrictions. Mr. Gwizdala is not immune from those tendencies and does not think that he is. If allowed to treat children, he represents a danger to the public safety and welfare. On the other hand, the evidence proves that Mr. Gwizdala has conducted himself appropriately since his 1985 conviction. He has worked hard to turn his life around and has demonstrated a commitment to bettering himself and helping others. He is cognizant of his tendencies and the need to restrict his interactions to adults. He has initiated measures to avoid inappropriate situations and the appearance of impropriety. The weight of the credible, persuasive, and consistent evidence establishes that Mr. Gwizdala does not present a threat to the public health and safety of adults. The weight of the credible, persuasive evidence proves that Mr. Gwizdala is not a threat to the public safety under appropriately restrictive conditions, including a prohibition on treating or being in contact with minors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order granting Mr. Gwizdala a license to practice subject to these restrictions: Restrict Mr. Gwizdala's practice to adults only and prohibit practice in any setting involving minors; Require Mr. Gwizdala to enter a professional boundaries contract with PRN, with duration and monitoring to be determined by PRN; Require Mr. Gwizdala to successfully complete a comprehensive course on professional boundaries. DONE AND ENTERED this 29th day of April, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2014.
Findings Of Fact Petitioner, Rachel H. Wooten, a long-standing legal resident of Florida, submitted an application for licensure by exception as a Marriage and Family Therapist, along with the required fee, to Respondent on September 3, 1982. The form and fee were received by Respondent on September 10, 1982. Attached to the application was supporting documentation to establish that Petitioner received her master's degree in teaching from Rollins College in 1966. Subsequent to the award of her master's degree, as stated, she also earned additional graduate level courses in subjects related to marriage and family counseling. Including both the graduate course work leading up to and subsequent to the award of her master's degree, she had a total of 60 credit hours, of which 43 credit hours were all in specialized courses directed to marriage and family counseling. These courses were taken at accredited educational institutions which are accepted by Respondent. They include Rollins College, University of Central Florida, Florida State University, and the University of North Carolina. Petitioner is currently employed by the State of Florida, Department of Health and Rehabilitative Services, in its Orlando Vocational Rehabilitation Program as a program analyst. As such, she directs and consults with 39 counselors who possess at least a master's degree. Prior to assuming this position in 1970, she was a counselor and supervisor for Vocational Rehabilitation in a position with a counselor case load of 170-175 cases, and a supervisor case load of between 600 and 700 cases. She held that position from 1966 to 1970. She also maintains an active marriage and family counseling private practice which she carries in this area in the evenings. Her patients are primarily professional people. She sees only individuals who are referred to her by other practitioners in one of the professional disciplines such as medicine psychology, the law, or the like. In addition, up through 1980, she was also engaged in a group counseling practice under the supervision of and in conjunction with other counselors and has been engaged in co-practice with another counselor as a part of her continuing practicum. Petitioner is a clinical member of the American Association of Marriage and Family Therapists (AAMFT). A clinical membership is the highest and most professional category of membership is the highest and most professional category of membership available. She has possessed this qualification since June, 1981. In order to be eligible for this type of membership, a candidate must meet the association's academic requirements and undergo 200 hours of supervision by an AAMFT-approved therapist. This supervision is rigid and demanding and includes such elements as continuing education, taped sessions, clinical work, and the like. Respondent does not consider AAMFT's educational requirements as stringent as its own, nor are they comparable. After evaluation by representatives of Respondent, Petitioner's educational background was found not to meet the requirements of the law in effect at the time of Petitioner's application. Respondent's rationale for denying Petitioner's licensure by exception 1/ is based on its contention that pertinent educational requirements include, as an indispensable element, the award of a master's degree in Marriage and Family Counseling or a clearly comparable field of study, and since Petitioner's degree was in teaching, it does not qualify. 2/ Respondent further concludes that since it was not shown Petitioner's relevant undergraduate courses were considered by Rollins College as a part of the course work for the master's degree, these cannot be considered as counting toward the required credits. It was also held by Respondent that since Petitioner's master's degree was not in a specialty recognized by Respondent for licensure by exception, the relevant course work subsequent to the award of the master's degree cannot be counted either. Respondent states as its reason for not considering the course work outside the Master's Degree is that these courses were chosen solely by Petitioner at her discretion and were not required as a part of a formally designed course of study by an educational institution, leading toward a degree in this area of expertise. In that regard, Rule 21U-500.17(1)(c), Florida Administrative Code, requires that the course work leading up to the master's degree in Marriage and Family Counseling or a clearly comparable field of study include 18 semester hours in the specialty area. Here, Respondent gave Petitioner credit only for three courses, totaling nine semester hours, which were ED 544 (Tests and Measurements: Group Testing I), ED 600 (Readings: Adolescent Development), and PSY 549 (Counseling Procedures I). The courses Petitioner took subsequent to the award of her master's degree would meet the requirement for licensure by exception if it has been included in the work leading up to the master's degree. The Respondent concedes that Petitioner is, by training and experience, qualified to be a licensed Marriage and Family Therapist and, were it not for the technical requirements stated above, which Petitioner does not meet, would license her as such.
Recommendation Based on the above, it is RECOMMENDED: That Petitioner's application for licensure by exception as a Marriage and Family Therapist be denied. RECOMMENDED in Tallahassee, Leon County, Florida, this 1st day of February, 1984. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February.
The Issue The issues in this case, as set forth in the Prehearing Stipulation, are as follows: Whether Respondent was terminated from the State Medicaid Program; [Case No. 14-2488, Count I] Whether Respondent failed to update his practitioner profile within fifteen days of the filing of the order terminating him from the State Medicaid Program; [Case No. 14-2488, Count II] Whether Respondent exercised influence within the patient-physician relationship with T.J.[1/] for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with T.J.; [Case No. 14-1342, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with M.B. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with M.B.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with C.J. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with C.J.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with D.K. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with D.K.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with A.H. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with A.H.; [Case No. 14-1343, Counts I & II] and Whether Respondent exercised influence within the patient-physician relationship with S.D. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with S.D. [Case No. 14-1343, Counts I & II]
Findings Of Fact Petitioner, Department of Health, Board of Medicine (the “Department”) is the State agency responsible for licensing and monitoring physicians in the State of Florida. The Department regulates the practice of medicine in accordance with section 20.43 and chapters 456 and 458, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification. Respondent is a licensed Florida physician, certified in the area of pain management, holding license number ME 97134. At all times relevant hereto, Respondent was practicing medicine at one of two locations: the Back Authority for Contemporary Knowledge, (a pain management clinic known as the “Back Center” located in Melbourne, Florida); and Advantacare (in its Altamonte Springs and Daytona Beach offices). Respondent was employed at the Back Center from January 2008 through September 2011, and at Advantacare from March 2012 through April 2013. Respondent provided pain management services for numerous patients during his tenure at each of the clinics. While at the Back Center, he saw 50 to 60 patients per day in an 8-hour workday, doing about 15 medication injections per day. At Advantacare he was seeing about 30 patients per day. By all accounts, Respondent is a skilled and proficient pain management physician. At Advantacare, Respondent would see patients for regular office visits at the Altamonte Springs office on Monday, Tuesday, Thursday, and Friday; Wednesday would be set aside for administering injections under a fluoroscope, described as sort of a C-shaped X-ray machine, performed at the Daytona Beach office. None of the sexual behavior alleged in the Administrative Complaints occurred during injections performed under fluoroscope. A general policy existed at the Back Center that required physicians to have another facility employee (medical technician, nurse, other) present in an examination room when a physician was providing care to a patient not of the same gender as the doctor. This “chaperone” policy is standard in the health care industry. There is no credible evidence that Respondent was ever shown the Back Center’s policy in writing, although it is probable the policy was accessible on the website of the entity (Osler Corporation) that owned the Back Center for a period of time. As a practicing physician, Respondent was also presumed to be aware of and to follow the chaperone policy and he admitted knowing about the policy in general. Respondent was, however, verbally apprised of the policy by his supervisor, Dr. Hynes, by the clinic operations manager, Mr. Pachkoski, and by the chief administrative officer, Cathy Bird. Respondent acknowledged that it was best to have another person in the examination room if he was providing treatment to a female patient. If no chaperone was available, it was his stated practice to keep the door open. Respondent did not feel like assistants were always available to chaperone, but neither his supervisor (Dr. Hynes) nor a co-physician (Dr. Zaidi) remembers Respondent complaining that staff was not available at the Back Center. The testimony of all six complainants in this case contradicts Respondent’s contention; each of them said they were treated by Respondent (alone) in a room with the door closed. When asked directly whether he ever treated female patients at the Back Center in a room with the door closed, Respondent admitted that it happened on occasion. The best and most persuasive evidence in this case is that a chaperone policy did exist and that Respondent did not follow the policy. Between September 2008 and January 2013, Respondent treated six female patients who are the subjects of the Department’s Administrative Complaint. Each of the patients is identified only by their initials in an attempt to maintain their confidentiality and privacy. The six patients will be addressed in chronological order based on the dates of their alleged mistreatment by Respondent. Patient S.D. Patient S.D. was a patient of Respondent between September and December 2008. S.D.’s status as a patient was stipulated to by the parties.2/ While she was Respondent’s patient, S.D. was also an employee of the Back Center. During the period of time Respondent was treating S.D., they engaged in a series of emails which could be construed as very sexual in nature. For example, on September 23, 2008, Respondent and S.D. had the following email exchange: S.D. – “You buying Dinner….Or am I your [f***ing] dinner????”Respondent – “What do you think? I want u as breakfast, lunch and dinner. My precious love.” S.D. – Ok so what am I going to eat LOL??? Let me guess a protein shake”Respondent – “If I shake it hard enough yes.” Then, on September 25, the two had this email exchange:Respondent – “NO I WANT U TO FEED ME!!! AND NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!! I’M UR MAN AND I SAY NO.”S.D. – “Then act like it and stop flirting with the [f***ing] skank!”Respondent – “WHY? GETTING JEALOUS SWEETHEART?”S.D. - “No I guess I have no reason to be.” Respondent – “EXACTLY, YOU HAD ME AT LUNCH AND LEFT TO GO TO WORK. SO YOU CAN’T SAY ANYTHING, PRECIOUS.” Respondent denies that the exchange of emails with S.D. suggests anything of a sexual nature. He said, e.g., that in his Iranian culture, talking about eating someone was tantamount to saying you cared deeply for them. Respondent’s denial of the sexual nature of the emails is not persuasive. S.D. did not testify at final hearing nor was her testimony preserved by way of a deposition transcript. The Department offered into evidence an exhibit comprised of various emails between S.D. and Respondent, two of which were discussed above. At least one co-worker, Lizamar Korfhage (a physician’s assistant at the Back Center), heard S.D. yell loudly in the office--as S.D. was being terminated from employment--that she (S.D.) and Respondent were having sexual relations. Cathy Bird, former chief administrative officer at the Back Center, had discussed the alleged affair with S.D. during several conversations before S.D.'s employment with the Back Center ended. Bird also talked with Respondent about the situation after S.D. was fired from the Back Center. Respondent was concerned that S.D. would tell Respondent’s wife about the affair and sought Bird’s guidance in the matter. Based upon the entirety of the clear and convincing evidence presented, Respondent was involved in a sexual relationship with S.D. at some point in time when S.D. was also a patient of the Back Center. Patient T.J. Patient T.J. was a 37-year-old patient when she saw Respondent at the Back Center on October 29, 2010. T.J. had seen Respondent professionally some 16 or so times previously. No inappropriate conduct had occurred on any of those visits. On the October 29 visit, T.J. was escorted into an examination room by a nurse as usual. Respondent came in and, after examining her, suggested that trigger point injections might help alleviate her pain, which she described as being a “2” on a scale of 1 to 10.3/ She agreed to the plan of treatment. Respondent had T.J. sit on an armless stool and lean her arms and head onto a desk. Respondent stood on her left side and began administering injections into her neck. As he leaned against her body, T.J. felt what she described as Respondent’s erect penis rubbing on her upper arm or shoulder. She felt like Respondent was intentionally rubbing her in what she later concluded to be a sexual manner. When he finished the injections, Respondent did not act any differently than usual. T.J. felt like something “weird” had just happened, but decided not to report it because she was not completely sure about her perceptions. Respondent, in contradiction to T.J.’s testimony, said he generally stayed four to five inches away from his patient when administering the injections, but would sometimes come into contact with them. T.J. returned for a follow up visit on November 24, 2010, receiving another injection by Respondent. She reported no misconduct by Respondent on that date. On December 23, 2010, T.J. returned to the Back Center for additional treatment. This time, her pain was radiating all the way down to her buttocks area and was described as a “3” out of 10. She was again escorted to an examination room to wait for Respondent. Respondent came in and closed the door, as was his usual practice during T.J.’s visits. After examining her, Respondent suggested injections for sacroiliac joint pain. T.J. was told to lie on the examination table on her left side. Respondent had T.J. lower her jeans to just below her knees. She had her left leg out straight and her right leg bent at the knee and across her left leg. Respondent then began to press his fingers on different parts of her inner thigh searching for the source of her pain. The pain was centered between her knee and buttocks area, and Respondent made an injection in that area. Respondent then had T.J. roll over to her right side as he pulled the table slightly away from the wall and placed himself between the wall and the table. Respondent began pushing on her inner thigh again, starting at her knee and moving upward toward her buttocks. As he did that, his tone of voice changed and he began panting. He continued to touch and probe her thighs as his hands went higher until he ultimately touched her vagina. T.J. immediately said, “That’s it” and quickly got off the examination table and pulled up her jeans. Respondent appeared sweaty and red-faced, looking to T.J. like a person who had just engaged in sex. T.J. then began to consider whether Respondent’s behavior during the October 29, 2010, visit had indeed been sexual in nature as well. She concluded that it was, and decided not to see Respondent for treatment in the future. She did not, however, report either of the incidents to the Back Center immediately. She ultimately did so, telling physician's assistant Korfhage about the incident some 10 months later. After seeing a report on television in 2013 that Respondent had been accused by another patient of sexual misconduct, she decided to make a report to the police about her own experiences with Respondent. When the police did not prosecute, she contacted an attorney in order to file a civil action against Respondent. T.J. appeared to be honest and forthright during her appearance at final hearing. Her testimony about her version of the events was credible, clear, and convincing. In his testimony at final hearing, Respondent did not specifically refute T.J.’s testimony so much as he explained how his normal process would not allow for the kind of touching T.J. alleged to have occurred. Respondent did not specifically or directly deny touching patient T.J.’s vagina, saying only that there would be no reason to do so. Patient D.K. (also known as D.W.) D.K. was a regular patient of Respondent and the Back Center. She had an appointment on January 13, 2011, to see Respondent for pain she was experiencing in her lower back and sides. On previous visits to the Back Center, Respondent had done localized injections to help D.K. deal with the pain. On those visits, she had simply rolled her pants down below her waist and leaned against the examination table in order for Respondent to do the injections. On the January 13 visit, she was told to lie on the table and pull her jeans down to her knees while Respondent went to prepare the medications. Respondent returned, closing the door as he came into the room. Respondent began injecting medications into her back and both sides. He then moved lower and administered injections into her thighs although she had not complained about any pain in that area. Respondent then moved her jeans down to her ankles and began administering injections into her calves. While he was injecting her, she felt him rubbing his erect penis against her thighs and heard his breathing get heavier. She could also feel Respondent lean closer to her and felt his breath on her thighs as he injected her calves. After the injections were complete, D.K. said Respondent was sweating, flushed, and “looked like my husband after we’ve had intercourse.” D.K. left the office and returned to her car. She immediately began to mentally process what had occurred to her, but did not immediately tell anyone at the Back Center. She was shocked and upset by the event but waited a few days before telling her husband what had happened. She then reported the events to someone at the Back Center. The Back Center asked her to come in so she could discuss the situation with Dr. Hynes, medical director of the Back Center. Later, D.K. made a complaint to local law enforcement about the incident. D.K. has also contacted an attorney to look into filing a civil lawsuit against Respondent. In response to the complaint by D.K., Dr. Hynes mandated that Respondent have a medical assistant with him during any contact with female patients. Despite the prohibition, Respondent continued to see female patients in an examination room without others present. He was confronted several times by the site operations manager about this violation, but Respondent did not change his behavior. D.K. was a credible witness. She provided a clear and unequivocal description of what transpired during her visit to the Back Center on January 13, 2011. Patient C.J. Patient C.J. presented to the Back Center experiencing pain as a result of shrapnel wounds received while she was serving in the U.S. Army in Afghanistan. C.J. did not testify at final hearing so her physical demeanor could not be assessed. Her deposition transcript was admitted into evidence over objection. In May 2011, C.J. was referred to the Back Center by her treating physician at Patrick Air Force Base. She took the referral, called the Back Center, and was assigned to Respondent for pain management services. C.J. went to the Back Center on May 4, 2011. She was experiencing significant pain and was physically uncomfortable. C.J. was processed in by a receptionist and then led to an examination room by a female employee. The employee took C.J.’s blood pressure, gathered some personal information, and left the room. On that date, C.J. was wearing jeans, a blouse, and open- toed shoes. She had on “full underwear” that day. Respondent came into the room and examined C.J. as she sat on the examining table. He advised C.J. that an injection might benefit her. As C.J. remembered it, the injection was to be in the side of her neck, and then in her back or hip. Respondent left the room to obtain the medications as C.J. waited. Upon his return to the room, Respondent injected Depo- Medrol 40 mg, Toradol 30 mg, Lidocaine 2% 0.5 mL, and Marcaine 0.5 mL into the left side of her neck. After the initial injection, Respondent left the room while the medication took effect. C.J. began to feel very relaxed and sleepy. Respondent recollects that C.J. complained of feeling light-headed, but does not believe any medication he injected would have caused that to happen. Respondent later returned to the room and prepared to give C.J. another injection into her hip area. She sat up on the table as Respondent pulled one end of the table slightly away from the wall.4/ After moving the table, Respondent had C.J. lie down on her side, lift her blouse, and unbuckle her jeans. She then slid her jeans and underwear down past her hips as directed. At that point, Respondent began injecting a solution into C.J.’s hip. As the injection was proceeding, she felt Respondent slide his hand over her hip and “in my groin area.” While doing that, Respondent’s crotch was pressed against C.J.’s buttocks. C.J. felt what she believed to be Respondent’s erect penis pushing against her buttocks as he administered the injection. After the injection was completed, Respondent came around from behind the table and told C.J. she would need to come see him again in a few weeks. C.J. got up from the table and began to realize that “something was not right” about the treatment she had just received. When C.J. went to the front desk to check out, she asked a nurse to identify the medications which had been injected but was unable to get that information. C.J. then left the Back Center and immediately called her nurse case manager at Patrick Air Force Base to report what had occurred. Her nurse advised C.J. to call 911 to report the incident; C.J. did so as she walked out to her car in the parking lot. A policeman arrived some 20 minutes later and took her statement. The officer then went inside to talk to Respondent. He said Respondent appeared to be surprised and shocked by C.J.’s allegation. The police decided not to file any charges against Respondent based on C.J.’s complaint. The reporting police officer (Middendorf) seemed to question C.J.’s veracity or truthfulness on the day of the incident. He said C.J. was upset and seemed lethargic, except when she was talking on the telephone to “one of her superiors.” According to Middendorf, C.J. acted consistent with someone who may be under the influence of drugs. He did acknowledge that C.J. had just come out of a pain management clinic. Middendorf also felt C.J. was either confused or not telling the truth concerning where Respondent had allegedly touched her. C.J., who was obviously distraught at the time, indicated both her pubic area and her outer thigh when she told Middendorf that Respondent had touched her “groin.” Middendorf challenged her about that and C.J. became defensive and argumentative. He did not provide any credible testimony as to why he believed she might be lying to him. His statement that C.J.’s voice changed when she was talking to her office on the phone is not conclusive evidence that she was not telling him the truth. C.J. never returned to the Back Center. She obtained pain management treatment elsewhere. Inasmuch as C.J.’s demeanor could not be judged because she did not appear in person, her testimony must be considered using other factors. In this case, the testimony was very similar to the facts described by other patients of Respondent concerning their treatment by him. The events as described by C.J. were believable and convincing, especially when compared to the allegations by other alleged victims. Neither C.J. nor any of the other alleged victims/complainants has talked to other alleged victims about their experiences, so there does not appear to be any collusion between the victims. Patient M.B. Patient M.B. was already a regular patient at the Back Center when she first saw Respondent on July 7, 2011. Respondent’s notes in M.B.’s chart indicate the patient was presenting for “initial evaluation” that day, but that was not correct; she had already been seen several times by other physicians at the Back Center. M.B. had chronic lumbalgia (low back pain) and lower extremity dysesthesia (a burning sensation) which was increasing progressively. Respondent examined M.B., discussed his findings, and scheduled a follow-up appointment for August 2, 2011, at which time he gave her an injection of 1% Xylocaine with approximately 30 ml of Lidocaine 1% on both of her side hips. He also injected a block with a solution containing 2 ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo- Medrol 80 mg into M.B.’s joints. M.B. reported no suspicious or untoward behavior by Respondent during the July 7 and August 2 appointments. On August 29, 2011, M.B. returned to see Respondent. She presented with pain in her hips and left side. Nurse Bobbi McDonald escorted M.B. to the examination room and took her vital signs before leaving. Respondent came into the room, alone, and closed the door. At that visit, M.B. was wearing khaki mid-thigh cargo shorts, a blouse that tied around her neck, and bikini underwear. Respondent asked about her pain, touched points on her body to identify the exact pain locations, and adjusted her back manually. He then suggested injection of a steroid as a stop-gap measure prior to scheduling her for a fluoroscope injection later. M.B. agreed to the plan. Respondent left the examination room to get the medication. When he returned, he was alone and again he closed the door. Respondent told M.B. to pull her shorts down below her waist and to cover herself with a paper gown. She pulled her shorts and underwear down about halfway across her buttocks, which was lower than she would normally pull them for fluoroscope injections. Respondent began to clean the area for the injection and asked M.B. to pull her garments down further, below her buttocks. Respondent then pulled the table out from the wall and he went between the table and the wall. He injected M.B.’s hip about five times with a solution containing Depo Medrol 80, Toradol 60, Lidocaine, and Marcaine 1 ml. As he injected her, M.B. could feel Respondent’s groin touching her hip. She could feel what she believed to be Respondent’s erect penis rubbing against her in a back and forth motion. By this time, her paper gown had fallen off, exposing her buttocks and vaginal area. After the last injection, M.B. felt Respondent’s fingers touching her vagina. As she pushed upward to get off the table, M.B. felt Respondent touch her vagina again. She got off the table, pulled up her pants, and sat down as the doctor began talking to her. M.B. did not say anything to Respondent. She immediately believed that she had been sexually assaulted, but was too confused and shocked to say anything to anyone. M.B. did not initially report Respondent’s behavior to the Back Center. She later reported her allegations to the Melbourne Police Department and also filed a civil lawsuit against Respondent and the Back Center. (M.B. would continue to return to the Back Center, but did not see Respondent again for any of her treatments.) M.B.’s testimony was not as immediately believable as that of some of the other witnesses. Based on her personality, fear of the process, or some other factor, she seemed to be fairly emotionless in describing the incident. However, inasmuch as her testimony was corroborated by what other patients had experienced, her clearly enunciated statements are convincing. Further, M.B. exhibited extreme visual cues as to her intense dislike for Respondent at the final hearing. The testimony of M.B. alone would not be clear and convincing evidence of any wrongdoing by Respondent. However, her testimony is corroboration of and support for the testimony of other victims. Respondent's employment at the Back Center was terminated shortly after M.B.'s appointment with him. There is no evidence as to Respondent's employment from September 2011 until he went to Advantacare in March 2012. Patient A.H. Patient A.H. presented to Advantacare (Daytona Beach office) on January 9, 2013, in an effort to address pain she was suffering as a result of an automobile accident that occurred in October 2012. She wanted to reduce her pain while also reducing the amount of medications she was taking. A.H. had a job which required driving, so she needed to be as drug-free as possible. A.H. was escorted to the examination room. She remembers that Respondent came in, closed the door, and propped it shut. Respondent remembers the door to that room being open, that it would open by itself unless something was placed against it. The medical technician assigned to Respondent said the door did not have any problems, but it would always be half open. There is no corroborated evidence as to whether the door to the room was open, closed, or ajar when A.H. was being examined. Respondent examined A.H. and began to show her some exercises and stretches that he thought might alleviate some of her pain. As she was sitting in a chair being shown how to stretch, A.H. felt Respondent’s erect penis pushing against her back. She quickly told Respondent “I’ve got it” in order to stop his actions. She got up quickly and moved to another chair in the office. A.H. clearly described what she had felt and had no confusion or doubt about what happened. Her testimony about the incident was credible. Respondent then told A.H. to lie on the table on her side with her arms stretched out in front of her. Despite what had just happened, A.H. complied with his directions.5/ When she got into position, Respondent had A.H. move her body over to the very edge of the table and began to manipulate her back. As his hands continued down her back, she felt his hands go down inside her panties. As this happened, she could feel Respondent “humping” her, grinding his groin area against her backside. Respondent then told A.H. to change positions on the table, moving her feet to the opposite end. Amazingly, she again complied with his instructions. Respondent began touching her upper thigh near her vagina and “did the same thing he had done before.” At that, A.H. quickly moved off the table and onto a chair, where she sat rigid and refused to move. Respondent seemed calm and relaxed, showing no sign of having acted inappropriately. A.H. did not tell anyone at Advantacare about the incident on that day because she could not fully grasp what had happened. As she began to understand the situation better, she was worried about reporting the incident because it would be her word against the doctor’s. A.H. did tell another doctor (Dr. Jacobson) about the incident when she saw him the next day for a regularly scheduled appointment. Dr. Jacobson had been an employee with Advantacare and presumably relayed A.H.’s allegations to the center. A.H. also reported the incident to the Board of Health and to law enforcement. She later contacted an attorney about filing a civil lawsuit against Respondent. A.H. did not return to Advantacare for treatment after this event because of the traumatic impact of the incident. Respondent has no independent recollection of A.H. as a patient, but said he did not touch her inappropriately. A.H.’s testimony was believable. She was a credible witness and articulated her testimony clearly. It is strange that A.H. would continue to obey Respondent even after he had touched her inappropriately, but she was obviously a compliant person, especially as it relates to physicians. Respondent’s defenses to allegations by patients Respondent claims he never saw a written chaperone policy at the Back Center but that he knew that it existed. According to him, there was insufficient staff available to make it possible to comply with the policy. Respondent’s testimony in this regard is rejected as being contrary to better, more persuasive evidence. Respondent said he was on several medications for “five or six years” prior to the final hearing, including Zoloft for mild depression, Lisinopril for hypertension, and Toprol for hypertension. One of the possible side effects of those medications is impotence or erectile dysfunction. However, during the time he was taking these drugs, Respondent fathered his two children. There is no competent evidence that Respondent suffered from impotence or erectile dysfunction during the time of any of the allegations about sexual misconduct. Respondent usually wore a lab coat when treating patients. The coat is long and had large pockets in the front, at about groin level. Respondent would keep empty syringes in his coat pocket. He suggests that female patients who said they felt his erect penis were actually feeling the syringes. His suggestion is not very plausible or persuasive. Respondent demonstrated at final hearing the normal physical stance he took when doing an injection of a patient in an examination room setting. He suggested that his body would be turned at a 45-degree angle from the patient rather than facing them directly, thus eliminating the possibility of full frontal contact with the patient. He also said that he generally stood four or five inches away from the patient, but might come into contact with the patient occasionally. Neither the statements nor his demonstration were persuasive. Respondent’s contention is that each and every one of the patients who alleged sexual misconduct was lying. He suggests that patient D.K. was overweight and thus would not have sexually aroused him. Also, he maintains that her description of the injections being performed while Respondent was rubbing against her would have necessarily resulted in horrible pain at best or a broken needle at worst. He claims that since patient M.B. was married to a policeman, she would have necessarily taken photographs of her numerous injections to preserve a record and she would have complained immediately. Her failure to do so, he suggests, impugns her testimony. Respondent contends that patient T.J.’s tardiness in reporting her allegations suggests the allegations were false. Respondent refutes A.H.’s allegations on the basis that there was a disagreement as to the physical layout of the medical office. Respondent contends there is no evidence that patient S.D. (his alleged lover) was his patient, even though there is a stipulation to that effect. Despite these speculative defenses, the evidence presented by the alleged victims is credible and accepted as fact. Failure to update practitioner profile A letter dated March 27, 2013, advising Respondent of his termination from participation in the Medicaid Program, was mailed to Respondent at two separate addresses: 2222 South Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e., the address of the Back Center, and 930 South Harbor City Boulevard, Melbourne, Florida 32901, the address for Osler (the company with whom the Back Center merged at some point in time). The letter to 2222 South Harbor City Boulevard was received on April 1, 2013, and an acknowledgement was signed by Chandra Carrender, a Back Center employee. Respondent’s employment with the Back Center had been terminated some 16 months previously, i.e., in August 2011. The letter mailed to 930 Harbor City Boulevard was returned as undeliverable. The termination letter provided Respondent notice of his right to contest the decision. He was given 21 days from receipt of the letter to file a Petition if he wanted to challenge the termination. Respondent did not file a challenge, so on or about June 21, 2013, a Termination Final Order was filed by the Agency for Health Care Administration (AHCA), setting forth Respondent’s termination from participation in the Florida Medicaid Program. The termination was issued pursuant to section 409.913, Florida Statutes. By law, Respondent was required to update his Florida practitioner profile within 15 days of receipt of the Termination Final Order. The Termination Final Order was mailed to Respondent, return receipt requested, at two different addresses: The 930 South Harbor City Boulevard address and the 2222 South Harbor City Boulevard address. Respondent denies having received the letter or TFO until just prior to the formal administrative hearing in this matter. Licensed physicians in the State of Florida are required to maintain a current address of record with the Agency for Health Care Administration (AHCA) and the Department of Health. Neither Respondent nor the Department provided evidence as to what Respondent’s official address of record was at the time the TFO and the letter were sent to Respondent at the two Harbor City Boulevard addresses. According to the deposition testimony of Michael West of the AHCA Medicaid Program Integrity office, the notices were sent to Respondent’s “address of record” per section 409.913(6), Florida Statutes. West’s testimony, however, did not specify what address that was. It might be logically presumed that one or both of the Harbor City Boulevard addresses were the “address of record,” because that is where the notices were mailed. However, there is no clear and convincing evidence as to Respondent’s official address of record at the time the Termination Final Order was mailed. The statutory section referred to by West states: Any notice required to be given to a provider under this section is presumed to be sufficient notice if sent to the address last shown on the provider enrollment file. It is the responsibility of the provider to furnish and keep the agency informed of the provider’s current address. United States Postal Service proof of mailing or certified or registered mailing of such notice to the provider at the address shown on the provider enrollment file constitutes sufficient proof of notice. Any notice required to be given to the agency by this section must be sent to the agency at an address designated by rule. Respondent did not update his Florida practitioner profile because he claims never to have received a copy of the TFO or the letter. Neither Respondent nor the Department provided direct evidence of Respondent’s “address last shown on the provider enrollment file” as of March 27, 2013.6/ Other factual considerations Respondent was terminated from employment at the Back Center in September 2011. The termination occurred as follows: T.J. reported the alleged October 29, 2010 incident in April 2011. Dr. Hynes was already aware of another incident (from D.K. in January 2011). Dr. Hynes met with Respondent to discuss his alleged behavior. Respondent denied the allegations, saying that people just seem to like him and take advantage of him. He said the patients were lying about the incidents. Dr. Hynes mandated at that time that Respondent have a chaperone in the examining room with every female patient. Rather than being allowed to exercise “medical judgment” like other doctors in the clinic, Respondent was ordered to always use a chaperone with all female patients. After patient C.J.’s allegations came to light in May 2011, Dr. Hynes told Respondent that three times was enough; something had to be done. The Back Center commenced preparation of a termination letter. The letter was to tell Respondent that, pursuant to his Employment Agreement, the Back Center was providing him the 180-day notice of termination of employment “without cause.” The purpose of that letter was to allow Respondent time to find a job and not have a blemish on his record. One of the bases for the termination letter was that Respondent had been referred to the Physicians Recovery Network (PRN) for counseling to address his behavior. Dr. Hynes presumed Respondent was obtaining that counseling. However, when C.J. reported the incident on May 4, 2011, Dr. Hynes found out that Respondent had not been going to PRN as he had previously indicated. At about the time the 180-day letter was being drafted, another incident (by patient M.B.) was reported to the Back Center. Upon hearing of that allegation, Dr. Hynes verbally fired Respondent, effective immediately, with cause. The 180-day letter was not actually delivered to Respondent until after the verbal termination, so the letter was moot when it arrived. Respondent did not tell his next employer, Advantacare, that he had been terminated from employment by the Back Center. He also did not advise Advantacare about the sexual allegations made by patients at the Back Center. In summary, Respondent engaged in activities of a sexual nature with patients at the Back Center in December 2010, January 2011, May 2011, and August 2011 (in addition to his relations with S.D. in 2008–2010). He engaged in sexually related touching of a patient at Advantacare in January 2013. His employment with the Back Center was terminated in September 2011; his employment with Advantacare was terminated in April 2013. Former patients of Respondent expressed dismay that he was being charged with the violations set forth in the Administrative Complaint. They found Respondent to be a caring and professional doctor. It is clear Respondent did not treat all his patients the same way he treated the victims identified herein. Some of his co-workers said they did not see Respondent engage in any of the alleged actions. They did not receive any complaints from other patients. Respondent obviously has a stellar reputation with some of his patients and co-workers. That status, however, does not excuse his behavior with the victims in the present cases. It is also alleged that Bobbi McDonald was a rumor-mongerer and a liar. She appeared credible at final hearing and there is no competent, substantial evidence to support the dispersions cast by others. It should be noted that several witnesses identified by Respondent were displeased with the manner in which they were questioned by Department personnel prior to the final hearing. The witnesses expressed extreme discomfort when Department employees (attorneys) suggested that Respondent was “an addict” or a sociopath. While a state agency is bound to pursue all claims against individuals which it is responsible for licensing and monitoring, it is improper to harangue or disparage such persons in order to sway potential witnesses’ testimony. Upon full review of the evidence in this case, the potential witnesses who complained about the Department’s aggressive nature did not provide substantive testimony on the issues of this case. Thus, any harm which may have resulted from the Department’s statements would not affect the final decision herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health revoking Respondent, Albert Esmailzadeh, M.D.’s license to practice medicine in the State of Florida. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case, and that payment of such costs be assessed against Respondent, Albert Esmailzadeh, M.D. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2014.
The Issue Whether Respondent failed to meet the minimum standards of performance required by Section 491.009(2)(s), Florida Statutes, on two occasions.
Findings Of Fact The Department is the state agency charged with regulating the profession of marriage and family therapy pursuant to Section 20.43(3)(g) 29, and Chapters 456 and 491, Florida Statutes. Respondent is, and has been at all times material, a marriage and family therapist holding Florida license number MT1416. The last address of record of Respondent was 1416C, West 16th Street, Panama City, Florida 32405. Events relating to Ms. P.D. Ms. P.D. is a registered X-ray technologist, a registered ultrasound technologist, and a registered specialist in mammography. Ms. P.D. and her husband sought Respondent's professional help because they were experiencing marital difficulties. Ms. P.D. did not know Respondent until her husband chose Respondent as counselor. This occurred in June or July of 1997. They continued in counseling until March of 1999 or 2000. The dates provided herein are nonspecific because Ms. P.D. could not recall the exact years. At the beginning of the counseling, Ms. P.D. and her husband received counseling at Respondent's office. Later they went to dinner together and received these services in a less formal setting. At least two of Ms. P.D.'s daughters received counseling also. Ms. P.D. and her husband owned property in Panama City, Florida, located at 703 Kristana, a house in St. Croix, a farm in Nova Scotia, and waterfront property in Nova Scotia. Mr. and Ms. P.D. also owned a building at 810 Grace Avenue in Panama City, Florida. This property was purchased probably in 1994, and was sold in May or June of 2001. Ms. P.D. and her spouse operated an ultrasound school on the premises from about 1994 until late 1997. The ultrasound school was eventually closed due to lack of business. Ms. P.D. was a client of Respondent during the latter part of the time in which the ultrasound school was in operation. In the latter part of 1997, or in the early part of 1998, Respondent found that she could no longer occupy the office in which she had been practicing. During a counseling session, Respondent mentioned that she needed an office for her practice and Ms. P.D. informed her that she could lease the premises at 810 Grace Avenue. Respondent paid rent to Ms. P.D. by check. Ms. P.D. deposited the checks to one of at least two accounts she maintains. At some point subsequently, Ms. P.D. volunteered to work with Respondent in her practice. This was motivated in part because Ms. P.D. was an adoptive mother of two children who were acquired through an international adoption process. Respondent has experience in adoptions including working with the Florida Department of Children and Family Services. Eventually, an organization was formed with the corporate name of Future Choices, Inc. (FCI). Initial participants in the organization included Mr. and Ms. P.D. and Respondent, among others. This organization involved the adoption process. It also involved "supervised visitations." The record does not fully explain what a "supervised visitation" actually is, but it is apparent from the record that someone or some entity is willing to pay for "supervised visitations" and therefore, "supervised visitations" provided income for FCI. The business plan called for the organization to become profitable before any participants received a salary. Ms. P.D. was a member of the board of directors and was vice- president. She assumed these positions in 1998. She worked as a volunteer. She was not a subordinate of Respondent. They were business associates. Ms. P.D. served on the board until around 2000 or 2001. Events relating to Ms. P.M. Ms. P.M. works for the Salvation Army Domestic Violence Program. She sought family counseling from Respondent in 1997. She thereafter received individual counseling from Respondent until 1998. Ms. P.M. became friends with Respondent almost immediately upon the initiation of counseling. Respondent visited her in Ms. P.M.'s home, and Ms. P.M. visited Respondent in her home while the counseling relationship was ongoing. They had lunch together and went shopping. Her friendship with Respondent ended in 1999 when Ms. P.M. was informed that Respondent had revealed matters Ms. P.M. had provided to her in confidence. Events relating to both Ms. P.D. and Ms. P.M. Ms. P.D. traveled with Respondent to Tallahassee, Florida, for supervised visitation training, and to Hollywood, Florida, for a batterers intervention program, and to Orlando, Florida, for a program dealing with sex offenders. Ms. P.M. also went on the Hollywood and Orlando, Florida trips. These trips required an overnight stay or stays. Ms. P.D. also traveled with Respondent to near-by cities such as Marianna, Florida. During these trips Ms. P.D. remained a counseling client of Respondent, and Ms. P.D. voluntarily paid the cost of these trips. Ms. P.D. was excited about the business prospects of FCI. As a member of the board of FCI, Ms. P.D. signed checks drawn on the corporation. Ms. P.D. also paid the utility bills, and paid for much of the office equipment, for the benefit of FCI out of her personal funds. Sandy Gorman was a business associate of Ms. P.D. Ms. Gorman was introduced to Respondent by Ms. P.D. Ms. Gorman eventually bought the building at 810 Grace Avenue for $57,000. Mr. and Mrs. P.D. had purchased it for about $30,000. The sale to Ms. Gorman was for less than market value because Mrs. P.D. wanted to help her. During the time that Mr. and Mrs. P.D. owned the building, improvements were made on it, including the completion of an extant second floor. Respondent contributed to these improvements by causing Ms. P.M.'s husband to contribute toward making the top floor of the building habitable. Sandy Gorman is now a direct competitor of Respondent in the visitations and adoptions business in Panama City, Florida. Ms. Gorman continues to be close friends with Ms. P.D. Eventually the relationship between Ms. P.D. and Respondent soured. Around March, 2000, Ms. P.D. ejected Respondent and her belongings from the premises at 810 Grace Avenue. However, the business was beginning to turn a profit about the time Respondent was ejected. Expert testimony Debra Frank is a licensed marriage and family therapist, a licensed psychiatric mental health nurse practitioner, and a professor at Florida State University. She received her Ph.D. from Florida State University in the Interdivisional Program in Marriage and Family. She is an expert on the practice of marriage and family therapy in the State of Florida. Dr. Frank related that a marriage and family therapist provides counseling with regard to marital concerns or relationship concerns. She noted that the relationship between counselor and patient is based on trust. She opined that the counselor, because of her position, would often be able to exert influence on the client. She noted that clients come to the counseling relationship with emotional vulnerability and that it is the counselor's responsibility to act in the client's best interest. Dr. Frank explained that a dual relationship is one where there are relationships other than the counselor-client relationship. These relationships would include relationships based on business interests as well as those based on friendship. Dual relationships are not per se prohibited by either the law or by ethical standards. However, they are prohibited where they may have the potential to harm a client. In order to obtain a permissible dual relationship the therapy must terminate and there should be a gap in time prior to moving to another relationship. Moreover, the client should be referred to another counselor so that the client can discuss with another counselor the dual relationship prior to entering into it. Respondent accomplished neither of these actions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 491.009(2)(s), Florida Statutes, on two occasions, and which places Respondent on probation for a period of three months with remedial action as the Board may find appropriate, so long as such action is not inconsistent with the provisions of Section 491.009(1)(g), Florida Statutes. DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of May, 2002. COPIES FURNISHED: Deborah B. Loucks, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Russell K. Ramey, Esquire 1042 Jenks Avenue Panama City, Florida 32401 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
