The Issue The issues in this case are whether Respondent, an osteopathic physician who had a year-long consensual affair with one of his patients, committed sexual misconduct in the practice of osteopathic medicine; and if so, whether Petitioner should impose discipline on Respondent's license within the applicable penalty guidelines or take some other action.
Findings Of Fact Respondent David Simon, D.O. ("Simon"), is a family practitioner who was, at all times relevant to this case, licensed as an osteopathic physician in the state of Florida. His office was located in Palm Beach County, where he practiced medicine from 1985 through the events at issue and beyond, until at least the date of the final hearing. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed osteopathic physicians such as Simon. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. In May 2005, a 30-something year-old woman named C.K. became a regular patient of Simon's. As C.K.'s primary care physician from 2005 until the end of 2011, Simon treated C.K. for a variety of physical and psychological disorders. The nature and quality of Simon's medical care of C.K. are not in dispute, the Department having neither alleged nor proved that Simon's treatment of C.K. ever fell below the applicable standard of care, or that Simon's medical records failed to justify any course of treatment he undertook for her benefit. In or around November 2010, while their otherwise unremarkable physician-patient relationship remained intact, Simon and C.K. entered into a mutually consensual sexual relationship. This affair had its genesis in a discussion between Simon and C.K. that occurred on October 12, 2010, during an office visit. While being seen that day, C.K. expressed concern about having been exposed recently to sexually transmitted diseases as a result of experiences which she not only related in some detail to Simon, but also corroborated with photographic evidence stored in her cell phone. In view of these disclosures, Simon lost his professional detachment and entered into a flirtatious conversation of a personal, even intimate, nature with C.K. that was outside the scope of his examination or treatment of C.K. as a patient. C.K. was a willing participant in the non-clinical sexual banter which ensued. Some days or weeks later (the precise date is unavailable), C.K. stopped by Simon's office on a Friday afternoon after business hours, when Simon was there alone. The two resumed their previous, personal conversation, and C.K. proposed that they have sexual relations with one another, a suggestion to which Simon responded positively. Within weeks afterwards, Simon called C.K., and they made arrangements to meet privately after hours at his office, which they later did, as mentioned above, sometime in November 2010. Beginning with that visit, and continuing for about one year, Simon and C.K. met once or twice a month in Simon's office, alone, to engage in sexual activity.2/ Simon used his cell phone to call or text C.K. to schedule these trysts. C.K. consented to the sexual activity with Simon. She was, however, incapable of giving free, full, and informed consent to such activity with her physician.3/ Because C.K. was, at all relevant times, a competent adult, the undersigned infers that her incapacity to freely give fully informed consent stemmed from Simon's powerful influence over her as a patient of his. C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's appointments did not provide occasions, or serve as cover, for intimate rendezvous. There is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters would be therapeutic or were somehow part of a course of purported medical treatment or examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their personal and professional relationships separate and distinct.4/ The Department has made much of the type of sexual acts that Simon and C.K. engaged in. Simon described their behavior, somewhat euphemistically, as "sexually adventurous." The Department, in contrast, has implied that Simon is a paraphiliac or pervert, a contention which the undersigned rejects as not just unsupported, but disproved by the evidence. Although at least some of the sexual conduct in question might fairly be dubbed unconventional, more important is that every interaction between these adults took place in private, within the context of mutual consent. There is, moreover, no clear and convincing proof in this record of sexual violence or aggression, nor any evidence of actual injury, damage, or harm. For reasons that will be discussed, the undersigned has concluded that the details of Simon and C.K.'s sexual encounters are irrelevant to the charges at hand; thus, no additional findings about the specific sexual activities are necessary. Simon's liaison with C.K. lasted until late December 2011, at which time C.K. abruptly terminated the relationship. The evidence fails to establish C.K.'s reasons for doing so. Thus, the circumstances surrounding the end of the affair, of which scant evidence was presented in any event, are irrelevant. In the wake of the break up, Simon's affair with C.K. became a matter of public knowledge, gaining him the sort of notoriety few physicians would covet. Facing personal disaster and professional ruin, Simon sought counseling from Helen Virginia Bush, a specialist in sex therapy who is licensed both as a clinical social worker and as a marriage and family therapist. Ms. Bush counseled Simon on subjects such as professional boundaries and erotic transference. At her urging, Simon attended and successfully completed the PBI Professional Boundaries Course, a nationally recognized program for doctors and others at risk of developing inappropriate personal relationships with patients or clients. Ms. Bush testified credibly that in her opinion, which the undersigned accepts, Simon is unlikely to enter into another sexual relationship with a patient or attempt to do so. Simon shares office space and staff with Mary Scanlon, D.O., a physician who, like Simon, specializes in family medicine. Although she has an independent practice, Dr. Scanlon works in close proximity to Simon, whom she met in 2000 during her residency when Simon was the attending physician. Dr. Scanlon believes Simon to be an excellent physician from whom she has learned much about practicing medicine, and her credible testimony that Simon's patients hold him in high regard and have largely stood by him throughout this scandal is accepted. Dr. Scanlon was an effective character witness for Simon who favorably impressed the undersigned with her earnest and forthright demeanor. That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon's disgraceful dalliance with C.K. (which she in no way condoned or tried to excuse), even though she is not contractually bound to stay there, manifests genuine support of and respect for Simon, and tells the undersigned—— more persuasively than any testimony——that his career is worth saving. This is the first time that any disciplinary action has been taken against Simon's medical license. Ultimate Factual Determinations The evidence establishes, clearly and convincingly, that Simon exercised influence within the patient-physician relationship, albeit probably unwittingly, for purposes of engaging C.K. in sexual activity. This ultimate finding is based in part on an inference which follows from the presumed fact of C.K.'s incapacity to consent to sexual activity with Simon, but also on other circumstances, the most salient of which are that the initial steps toward the affair were taken during a medical examination, and that all of the sexual activity at issue occurred in the doctor's office. It is therefore determined, as a matter of ultimate fact, that Simon is guilty of engaging in sexual misconduct with a patient, as more fully defined in section 459.0141, Florida Statutes, which is a disciplinable offense punishable under section 459.015(1)(l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order finding Simon guilty of committing sexual misconduct with a patient, which is punishable under section 459.015(1)(l), Florida Statutes. Because this is Simon's first such offense, it is further RECOMMENDED that Simon be placed on probation for two years subject to such reasonable terms and conditions as the board deems appropriate, and that an administrative fine of $10,000 be imposed. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
Findings Of Fact At all times relevant hereto Stanley Mark Dratler, M.D., was licensed by the Florida Board of Medical Examiners. He completed a four-year residency in obstetrics and gynecology before opening an office in Dade City, Florida, in 1981. He has taken the written portion of the examination for Board certification but, at the time of the hearing, was not aware of the result of that examination. Patient A visited Respondent July 22, 1982, for a Pap smear which was subsequently followed by a biopsy and hysterectomy on August 18, 1982. Following her release from the hospital, A reported to Respondent's office on August 30, 1982, for her first office checkup following surgery. At this visit Respondent performed a complete physical examination including a pelvic examination, asked A questions regarding her sex life at home, and told her he could show her things that would help her sex life. While examining her and discussing her sex life, Respondent applied a Q-tip to various areas outside the vagina and asked A to describe the sensations created thereby. Some two weeks later A developed back pains, called Respondent's office, and was told to come in the next day. Again, Respondent did a complete examination, including pelvic, used a Q-tip swab to stimulate areas outside the vagina, and told A she needed to know how to masturbate herself and not rely solely upon her husband. During this examination, conducted in an examining room containing only A and Respondent, Respondent masturbated A and had her masturbate herself. When A asked about her back, Respondent told her there was nothing wrong with her back. A denied she ever told Respondent she felt numb between her legs. In Respondent's testimony he confirmed the August 30 visit to his office by A but claimed she complained of feeling numb between the legs. When he put her in the stirrups for an examination, he found nothing wrong externally and performed a psycho-sexual examination which involved the stimulating of sensitive areas around the vagina with a cotton swab. He denies he ever masturbated A; that at her final visit on October 8, 1982, she again complained of numbness between her legs; his examination, which included the touching of sensitive areas, revealed nothing wrong; and when they returned to his office after the examination she made advances toward him. When he told A he treated her like all other patients, she got mad and stormed out of his office. In Exhibit 3, the patient records of A, the October 8 entry indicated only that A came in complaining of some swelling of the lower extremities, and no problem with that was foreseen. That entry states A would not need to return for another visit before six months unless some other problem developed. In view of the significant differences between the medical record and Respondent's testimony, the testimony of A is the more credible. Patient E visited Respondent's office September 29, 1982, complaining of bleeding. During this visit a Pap smear was taken, as was a sexual history of the patient. During the pelvic examination Respondent talked to E of areas to stimulate for sexual arousal. With his finger in her vagina, he started to masturbate her and told her she needed to have more orgasms. E acknowledges telling Respondent she had intercourse five or six time per week and was anxious to get pregnant. She does not recall telling Respondent she reached climax only once per week, that her last climax was one week before the visit, or that she experienced pain on deep thrusting. Following this examination, E was given an appointment to return in two weeks, which she cancelled and did not again return to Respondent's office. Respondent acknowledges that E visited his office as alleged and that he gave her a complete examination including a pelvic exam. He contends the questions regarding her sex history were necessary to ascertain any problems inhibiting E getting pregnant. He denies masturbating E or telling her that masturbation, stimulation, or sexually-oriented conversations were a necessary part of gynecological treatment. Patient B first visited Respondent November 4, 1982, complaining of a rash in the vaginal area. Respondent obtained a sexual history of B, who at the time of this visit was 16 years old. This revealed B's first sexual encounter occurred at age 12, that she had never experienced orgasm although she had been sexually active. During the pelvic examination Respondent applied a cotton swab to various areas around B's vagina and asked her if it felt good here or there. B was given a prescription for the rash and told to return a week later. When she returned on November 8, B again was undressed for an examination. Respondent performed what he described as a psycho- sexual examination on B during which he massaged her breasts, stimulated areas outside the vagina with a cotton swab, and inserted fingers in B's vagina. While this stimulation was going on, B had an orgasm. B had experienced some side effects with the first rash medication and on the second visit Respondent prescribed a different medicine. B returned for a third visit on November 22, 1982, which she testified was for blood tests only. However, there is some disparity in the testimony and it is more likely that the stimulation and orgasm occurred during the visit on November 22 rather than on November 8. On her final visit, December 6, 1982, B was again examined and testified Respondent fondled her breasts while masturbating her. At this time she had commenced her menstrual cycle but Respondent told her that was all right as he could still examine her. At this final visit Respondent prescribed birth control pills for B. Respondent acknowledges that B had visited his office four times as she testified and that he gave her the psycho- sexual examination because she had engaged in sex for four years without enjoying it. His questions regarding her sex life was to find out if the rash was related to a sexually transmitted disease. Respondent denies that he fondled B's breasts or masturbated her. Exhibit 4, the medical history of B, confirms the four visits but contains no reference to the psycho-sexual examination Respondent performed. A return visit scheduled for December 22, 1982, was never kept by B. The testimony of B is more credible than that of Respondent respecting his actions with B while she was being examined. Patricia Cherry worked in Respondent's office as a medical assistant and secretary from July 1982 until January 1983 when she quit to work at Humana Hospital in Dade City. Respondent asked Cherry if she would teach some of his patients how to masturbate themselves. She refused by stating she was not interested. Cherry was told by Respondent that he was conducting a survey on human sexuality and each patient would be a part of that survey. On one occasion Respondent asked Cherry to come in one weekend and he would give her Sodium Pentothal. She declined this also. On one occasion she witnessed Respondent administer intravenously a drug to a patient which Respondent said was Sodium Pentothal. Respondent told Cherry that a patient was coming in to be given Sodium Pentothal and had requested Cherry be present while the drug was administered. The patient came in as scheduled and was administered something intravenously while undressed from the waist down. After the IV started, the patient became unconscious on two occasions. During one period while the patient was awake Respondent asked the patient what she thought about oral sex. During one period the patient was unconscious Respondent asked Cherry if she would sexually stimulate the patient. Cherry said no. Once while a drug salesman was in the office Cherry asked Respondent if he would give her some of the new medicine the salesman was offering for pimples. Respondent told her she should have a pelvic examination to find out if she was through puberty because use of the drug by one not through puberty could cause undesirable side effects. Cherry was 22 to 23 years old at the time, had experienced her menstrual cycle for several years and she declined to be examined. By definition, girls are through puberty when they commence their menstrual cycles. Petitioner's two expert witnesses opined that hands-on masturbation of a patient constitutes treatment below generally prevailing standards; constitutes use of fraud, intimidation, or undue influence on a patient; constitutes exercising influence within a patient-physician relationship for purposes of engaging the patient in sexual activity; and constitutes deceptive, untrue or fraudulent representations in the practice of medicine, or employing a trick or scheme which fails to conform to the minimum acceptable standards of the profession. Also, the use of a swab around the genitalia of a female patient to sexually arouse the patient does not conform to the generally prevailing standards of treatment in the medical community. Nor does the use of Sodium Pentothal on a patient in an out-patient setting comply with the prevailing standards. Sodium Pentothal is a drug not normally administered in an out-patient setting where emergency backup procedures are unavailable. Very few gynecologists are sufficiently trained in the use of this drug to safely administer such a drug to a patient and particularly so in an out-patient setting. Research is normally done in an approved academic environment and not by individual practitioners. Respondent denied that he was engaged in the research he told Ms. Cherry he was conducting. After hearing the testimony of the witnesses, Dr. J. Kell Williams, a Board-certified gynecologist and faculty member at the University of South Florida, opined that Respondent's treatment of the three patients who testified was below acceptable medical standards, constituted use of physician- patient relationships for improper purposes, constituted fraud and deception in the practice of medicine and the employment of a trick or scheme, which fails to comply with the minimum acceptable standards of the medical profession. Patricia Cherry was never a patient of Respondent. As an employee she was requested to instruct female patients in masturbation, which she declined to do. Respondent also suggested to Cherry that she submit to Sodium Pentothal, which she also declined. Likewise, she declined to allow Respondent to do a complete examination which Respondent insisted was necessary before prescribing medication for her acne. Although Cherry was not a patient, the representations regarding a pelvic examination prior to prescribing medication for acne constitutes deceptive, untrue and fraudulent representations in the practice of medicine and fraudulent solicitation of a patient. Absent a medical reason to conduct a pelvic examination, Respondent's insisting on doing so prior to treatment of acne constitutes an attempt to engage the patient in sexual activity.
Findings Of Fact On or about March 8, 1988, Petitioner filed a charge of discrimination based upon sexual harassment with the City of Clearwater, Office of Community Relations, involving Respondent. Petitioner had been employed at Respondent from approximately April, 1987 until she resigned in November, 1987. This case was duly noticed for hearing on August 24, 1988, by Notice of Hearing dated June 6, 1988. Petitioner received this Notice of Hearing, and did appear at the hearing. Petitioner testified, under oath, at the hearing that she did not want to pursue her claim of sexual harassment, and would offer no evidence in support of her claim. In fact, she did not offer any evidence in support of her claim.
Recommendation Based upon the foregoing, it is recommended that Petitioner's claim of discrimination based upon sexual harassment against Respondent be DISMISSED. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1988. COPIES FURNISHED: Elizabeth Moore 1411 Illinois Avenue Palm Harbor, Florida 34663 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79. It was not until the latter part of 1993, approximately 20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas M. Lindsey 21367 Anderson Road Brooksville, Florida 34601 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did the Respondent, Zafar S. Shah, M.D. (Dr. Shah), commit the violations alleged in Counts 7-10 of the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Dr. Shah is and, at all times material hereto, has been licensed to practice medicine in the State of Florida, having been issued license number ME0071706. Dr. Shah is board-certified in internal medicine. Dr. Shah was born, and spent the first 29 years of his life, in Pakistan. Dr. Shah is 35 years of age. Dr. Shah began working at MidTown Clinic in Zephyrhills, Florida, in October 1996, and continued to work at MidTown Clinic until he was terminated in 1999. Tammy Rachel (Tammy) worked as a certified nursing assistant at MidTown Clinic from June 1996 until she was terminated in March 1999. Tammy worked with Dr. Shah as his Medical Assistant during Dr. Shah's tenure at MidTown Clinic. At all times material to this proceeding, Tammy was married to, and lived with, Corey Rachel, her husband. Although T. H., Tammy's oldest daughter, age approximately 15 years, was at all times material hereto, living in the Rachel household, her biological father was the custodial parent. Tammy's two younger daughters also lived with their mother in the Rachel household. At all times material to this proceeding, Dr. Shah did not have any family living in the United States. After Tammy began working for Dr. Shah, she and Dr. Shah became close friends. As a result, Tammy, along with her husband and her daughters, including T. H., spent a great deal of time with Dr. Shah. Tammy and her family treated Dr. Shah as if he was a member of their family. Tammy and her family, including her husband, spent almost every weekend with Dr. Shah at his home or on outings with Dr. Shah. Dr. Shah visited Tammy's home on week nights during this period of time. This visitation, both weekend and week nights, between Dr. Shah and Tammy's family occurred between December 1996 and August 1999. Initially, the relationship between Dr. Shah and Tammy was a working relationship. However, in February 1997, Dr. Shah and Tammy began a sexual relationship which lasted until March 1999. When confronted by Corey Rachel about her relationship with Dr. Shah, Tammy denied having a sexual relationship with Dr. Shah. In fact, Tammy did not tell Corey Rachel of her sexual relationship with Dr. Shah until after August 5, 1999. During the period of time that Dr. Shah and Tammy's family were visiting back and forth, Dr. Shah established a close relationship with T. H., in that Dr. Shah: (a) gave more attention to T. H. than the other girls; (b) spent more time with T. H. than with the other girls; and (c) spent time alone with T. H. when she cleaned his house and at other times at the mall, etc. Tammy was aware of the relationship between Dr. Shah and T. H. and that T. H. was alone with Dr. Shah on occasions. However, there is no evidence that this relationship was intimate or in any way sexual in nature, notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks any credibility in this regard. A prescription in the name of T. H. with a date of January 18, 1999, for 60 250-milligram tablets of Erythromycin, an antibiotic, was presented to the Winn Dixie Pharmacy by Corey Rachael. The prescription was filled on January 20, 1999, and picked up by Corey and Tammy Rachel on that same date. The prescription carried what appeared to be the signature of Dr. Shah. However, Dr. Shah denies that he ever prescribed Erythromycin for T. H. or that he wrote or signed the prescription in question. Tammy gave the medication to T. H., which T. H. used, including the refills, for the acne on her face. However, it was T. H.'s testimony, which I find to be credible, that Dr. Shah never discussed the problem of acne with her, and did not prescribe Erythromycin or any other medication to treat the acne on her face. However, T. H. did discuss the acne problem with Tammy. It was not unusual for Dr. Shah to carry prescription pads home with him, which were then available to those in his home. Likewise, it was not unusual for a Medical Assistant, such as Tammy, to have access to Dr. Shah's prescription pads at work. In fact, it was not unusual for a Medical Assistant to fill in the necessary information on a prescription for the doctor's signature. The MidTown Clinic has no medical records or any other records reflecting that Dr. Shah ever saw T. H. as a patient. Likewise, Dr. Shah did not have any records reflecting that he had ever treated T. H. as a patient or that he had given T. H. a physical examination. T. H. did not have a regular physician. When she needed medical treatment, T. H. went to the Health Department or Tammy would secure medical treatment for T. H. from physicians with whom Tammy worked. Other than the allegation concerning the acne problem, there is no allegation that Tammy sought medical treatment for T. H. from Dr. Shah, or that Dr. Shah saw T. H. as a patient. An analysis by the Board's handwriting expert indicates that the signature on the prescription in question is consistent with the presumed, not known, signature of Zafar Shah, M.D. on 20 other prescriptions taken from the Wal- Mart Pharmacy in Zephyrhills, Florida. The Board offered no evidence that the signatures on the 20 prescriptions from Wal-Mart were in fact the signature of Zafar Shah, M.D., other than the testimony of the pharmacist from Wal-Mart that the signatures on those 20 prescriptions filled at Wal-Mart appeared to him to be the signature of Zafar Shah, M.D. Although the Board's handwriting expert was given the opportunity to compare current samples of Dr. Shah's signature, to be given by Dr. Shah prior to the hearing, with the signature on the prescription in question, he chose not to make this comparison. The Board's handwriting expert did not compare the signature in question to any known signature of Zafar Shah, M.D. There is insufficient evidence to establish facts to show that Dr. Shah wrote the prescription in question, notwithstanding the testimony of the Board's handwriting expert to the contrary, which I find lacks credibility in this regard. Likewise, there is insufficient evidence to establish facts to show that Dr. Shah ever treated T. H. for the acne on her face or for any other medical problem or that a patient- physician relationship ever existed between Dr. Shah and T. H., notwithstanding the testimony of Tammy or Corey Rachel to the contrary, which I find lacks credibility in this regard. On August 5, 1999, Dr. Shah had dinner with Tammy, Corey Rachel, T. H., and Tammy's two younger daughters at the Rachel's home in Dade City, Florida, as he had on many previous occasions. On August 5, 1999, Dr. Shah was to spend the night in the Rachel's home, as he had on many previous occasions. As usual, Dr. Shah was to sleep on an air mattress in the living room. Around 11:00 p.m. Tammy and Corey Rachel went to bed. Sometime thereafter, T. H. went to her room to prepare for bed and Dr. Shah proceeded to prepare for bed in the living room on the air mattress. Around 1:00 a.m. on August 6, 1999, Tammy testified that she was awakened by what she thought was a noise and got out of bed. After getting out of bed, Tammy checked on her two younger daughters, and then checked on T. H. who was not in her bedroom. Tammy then proceeded to look elsewhere in the house for T. H. Tammy also testified that when she walked into the living room she observed T. H. and Dr. Shah having, what appeared to her, to be sexual intercourse. Tammy became very upset and began beating Dr. Shah on the back and calling Corey Rachel. Dr. Shah attempted to protect himself from Tammy's onslaught by gathering his belongings and leaving the house. During the time Tammy was beating on Dr. Shah, she also slapped T. H.'s face. Corey responded to Tammy and instructed T. H. to go to her room. T. H. then went to her room. At this time, T. H. still had on the long T-shirt and under pants, which she had worn to bed. Likewise, Dr. Shaw had on the clothing that he had worn to bed. Tammy reported the incident to the Pasco County Sheriff's Department. Deputy Timothy Harris and Sergeant Rowan responded to the call by Tammy. Upon arrival at the Rachel home, the officers spoke with Tammy, Corey Rachel, and T. H. When T. H. was interviewed by Deputy Harris, she told Deputy Harris that she and Dr. Shah had been engaged in sexual intercourse at the time Tammy came into the living room. In fact, T. H. related a very explicit account of the incident, using language which was not in her normal vocabulary. T. H. also provided a written statement of the incident to Deputy Harris where she again admitted to having sex with Dr. Shah. After providing the written statement, T. H. went home with her father. T. H. was not under oath on either of these occasions. Deputy Harris inspected the scene of the incident for physical evidence that sexual intercourse had taken place between T. H. and Dr. Shah. Deputy Harris did not find any physical evidence that sexual intercourse had occurred. Deputy Harris also took some clothing that T. H. had been wearing as evidence for the purpose of examining for evidence of sexual intercourse. Upon examination, this clothing did not yield any evidence of sexual intercourse. Later in the morning of August 6, 1999, Detective Ball went to the home of Timothy Harvey and interviewed T. H. In this interview, T. H. again stated that she and Dr. Shah were engaged in sexual intercourse earlier that morning at the Rachel's home, and had, on previous occasions, had sexual intercourse at the Rachel's residence and at Dr. Shah's residence. She also related that she was in love with Dr. Shah and that they were going to be married when she turned 18 years of age. T. H. further related to Detective Ball that Tammy was jealous of her relationship with Dr. Shah. When Detective Ball requested that T. H. undergo a physical examination to uncover possible evidence of sexual intercourse between T. H. and Dr. Shah, T. H. refused to undergo the physical examination. T. H.'s reason for not taking the physical examination was that she loved Dr. Shah and any evidence found would obviously be used against him. Later, during the day of August 6, 1999, Tammy and Dr. Shah agreed to meet at Brewmasters, a restaurant in Wesley Chapel, halfway between Dr. Shah's house and Dade City, Florida. This meeting was arranged by Tammy at the request of the Pasco County Sheriff's office in an attempt to get Dr. Shah to admit to having had sexual intercourse with T. H. on August 6, 1999. Tammy was wired and the Detectives from the Pasco County Sheriff's office attempted to monitor the conversation. However, the monitoring was not too successful. During this meeting between Dr. Shah and Tammy, which lasted approximately 45 minutes, Dr. Shah repeatedly denied having sexual intercourse with T. H. At the conclusion of this meeting with Tammy, the Detectives approached Dr. Shah and requested that he accompany them to the County Jail. Although Dr. Shah was not officially placed under arrest at this time, he was unsure of his rights and felt intimated by the Detectives. The Detectives did not offer Dr. Shah the opportunity to drive his vehicle to the County Jail. Dr. Shah was transported to the County Jail by the Detectives. Once at the County Jail, the Detectives went through their interrogation (interview) routine. Dr. Shah's understanding was that the Detectives were giving him the choice of admitting to having had consensual sexual intercourse with T. H. or to having raped T. H. With that understanding, Dr. Shah admitted to having had consensual sexual intercourse with T. H. Dr. Shah was upset, confused and intimidated by the Detectives. Dr. Shah gave the Detectives the answers that he assumed they wanted. Upon being advised of Miranda rights, Dr. Shah requested an attorney and made no further statements. On September 28, 1999, Detective Ball and Bill Joseph, a Crime Scene Technician, went to the Rachel's home with a Lumalite for the purpose of illuminating body fluids that may have been left on the carpet or any other area as result of the alleged sexual intercourse. No evidence of body fluids was found. Under oath, during the State Attorney's investigation, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any time previous to August 6, 1999. Subsequently, the State Attorney, on February 14, 2000, filed a No Information concluding that the facts and circumstances of this case did not warrant prosecution at that time. Again, under oath at the hearing, T. H. recanted the story given in her written statement on August 6, 1999, and the story given verbally to Deputy Harris and Deputy Ball on August 6, 1999, and denied that she and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, when Tammy came into the living room or at any other time. However, T. H. admitted to having a sexual relationship with two young males prior to August 1999. T. H.'s reason for not telling the truth in her recitation of the facts in her initial interview with Deputy Harris or her written voluntary statement to Deputy Harris or in her interview with Deputy Ball was that she was aware of Tammy's involvement with Dr. Shah and was attempting to make Tammy jealous because she was mad with Tammy due to their fight the previous evening and because of other problems that she was experiencing with Tammy. Additionally, T. H. had overheard a conversation between Tammy and Dr. Shah wherein Tammy was discussing divorcing Corey Rachel and marrying Dr. Shah, which upset T. H. T. H. testified that sometime after she and Dr. Shah had gone to bed in their respective rooms, she went in the living room to talk to Dr. Shah about the situation between she and Tammy as she had on other occasions. During their conversation, T. H. was sitting close to Dr. Shah. As their conversation progressed, T. H. became emotional and Dr. Shah "put his arm around her shoulder" to console her as he had on other occasions when she would discuss problems between her and Tammy. It was in this posture that Tammy found Dr. Shah and T. H. at approximately 1:00 a.m. on August 6, 1999. There is insufficient evidence to establish facts to show that T. H. and Dr. Shah were engaged in sexual intercourse at the Rachel's home on August 6, 1999, or at any time previous to that date, notwithstanding: (a) Tammy's testimony to the contrary, which I find lacks credibility due to her demeanor at the hearing and her involvement with Dr. Shah; (b) T. H.'s admission that sexual intercourse had occurred, which T. H. later recanted under oath, and which she testified was only done for the purpose of making Tammy jealous; and (c) Dr. Shah's admission, while being interrogated, that consensual sex had occurred between he and T. H., which he later recanted under oath at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Dr. Shah not guilty of the charges outlined in Counts 7-10 of the Administrative Complaint and dismissing the charges outlined in Counts 7-10 of the Administrative Complaint. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jack D. Hoogewind, Esquire 33283 Cortez Boulevard Dade City, Florida 33523 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
Findings Of Fact At all times material hereto the Defendant was a registered real estate broker in the State of Florida, and held License Number 0060094. On or about December 5, 1978 Defendant pleaded no contest in Case No. 78-2506CF in the Seventeenth Judicial Circuit in and for Broward County, Florida, to the offenses of criminal attempt, as defined in Section 777.04(1), Florida Statutes, and indecent assault upon a female child, within the contemplation of Section 800.04, Florida Statutes. Thereafter, on or about February 9, 1979, the Defendant was committed by Judge James M. Reasbeck to the department of Health and Rehabilitative Services for care, treatment, and rehabilitation as a mentally disordered sex offender in accordance with the provisions of Section 917.19, Florida Statutes. In his order Judge Reasbeck specifically found that the Defendant "... suffers from a non-psychotic mental or emotional disorder, yet is competent and that the Defendant would be likely to commit further sex offenses if permitted to remain at liberty." Subsequently, on or about April 17, 1979, Defendant was admitted to the Mentally Disordered Sex Offender Program at South Florida State Hospital in Pembroke Pines, Florida. Defendant has remained in the Mentally Disordered Sex Offender Program at South Florida State Hospital since that time. The Defendant has made admirable efforts, both during his confinement at South Florida State Hospital and, prior to that time, in the Broward County jail to address both his problems with alcohol consumption and with his sexual deviation. The Defendant has been placed in positions of trust and responsibility in both these institutions, and has, apparently, discharged his duties in exemplary fashion. Although the Defendant has made some progress in the Mentally Disordered Sex Offender Program at South Florida State Hospital, he has not, as yet successfully completed that program. The Defendant remains within the jurisdiction of the committing court until such time as he is released from the Mentally Disordered Sex Offender Program and criminal proceedings involving the offenses to which he pleaded no contest have been concluded in the Circuit Court. In short, the Defendant is not free to come and go as he pleases, nor would he be automatically allowed to remain at liberty should he choose not to participate further in the Mentally Disordered Sex Offender Program. The Defendant did not advise The Board of the fact that he had pleaded no contest to the offenses with which he was charged within thirty days after the entry of his plea.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty therefor.
Findings Of Fact Parties and Investigation Leading to Issuance of the Amended Complaint The Department is the state agency responsible for regulating the practice of medicine pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep medicine specialist licensed (ME 114611) in Florida. Respondent completed a neurology residency in 2013 and a sleep medicine fellowship in 2014. He practiced at the VA from 2014 until 2020, initially at the Lake Baldwin facility and then at the Lake Nona facility. From 2020 until early 2021, Respondent practiced at Orlando Health. Other than the allegations herein, the Department has never sought to discipline Respondent. The Department seeks to revoke Respondent’s license based on allegations that he engaged in sexual misconduct during office visits with three female patients—S.R., M.H., and M.V.S. The parties stipulated that the factual allegations, if proven by clear and convincing evidence, constitute sexual misconduct under Florida law. On or around December 6, 2020, M.V.S. reported to both the LMPD and the Department that Respondent acted inappropriately during an office visit on November 30, 2020. The Department investigated further, interviewed M.V.S. and Respondent, and obtained medical records from Orlando Health. On February 17, 2021, the Department issued an Order of Emergency Restriction of License (“ERO”) that restricted Respondent from practicing on female patients based on findings of sexual misconduct with M.V.S. On February 22, 2021, Respondent requested an expedited hearing under sections 120.569 and 120.57. The Department properly did not transmit the case to DOAH at that time, as judicial review of the ERO is via petition in the appellate court. §§ 120.60(6)(c) and 120.68, Fla. Stat. Respondent filed such a petition, but the First District Court of Appeal ultimately denied it on the merits. On March 9, 2021, the Department presented its disciplinary case to a probable cause panel of the Board. After hearing argument from both parties, the panel unanimously found probable cause to issue a three-count Administrative Complaint (“Complaint”) seeking to discipline Respondent for engaging in sexual misconduct with M.V.S. On March 10, 2021, the Department issued the Complaint. On March 16, 2021, Respondent requested an expedited formal hearing under chapter 120. However, the Department did not immediately transmit the Complaint to DOAH because it had just received notification that the VA investigated complaints of sexual misconduct against Respondent by two veterans, S.R. and M.H., who each saw Respondent multiple times between 2014 and 2016. The Department obtained records from the VA. As to S.R., the VA closed the matter as unsubstantiated based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations. As to M.H., the VA found no conclusive evidence of misconduct based on Respondent’s testimony, which was corroborated by the testimony of his nurse and a medical student. After receipt of the VA records, the Department interviewed S.R. and M.H. Based on this additional information, the Department presented its case to another probable cause panel to amend the Complaint to include allegations relating to S.R. and M.H. After hearing from both parties, the panel voted unanimously on April 23, 2021, to find probable cause of sexual misconduct with S.R. and M.H. On April 27, 2021, the Department issued the three-count Amended Complaint seeking to discipline Respondent’s license for sexual misconduct with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third request for a hearing, which sought transmission of the case to DOAH for an expedited evidentiary hearing to be held within 30 days. On April 30, 2021, 45 days after Respondent’s request for a hearing on the initial Complaint, the Department transmitted the Amended Complaint to DOAH to conduct an evidentiary hearing under chapter 120.2 2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the final hearing, and orally at the final hearing, Respondent argued that the Department improperly delayed transmitting the case to DOAH and violated his due process rights throughout the investigatory process. Even had Respondent preserved those arguments by including them in his PRO, the undersigned would have found that the Department’s investigation, the probable cause panel proceedings, and the timing of the transmittal of the case to DOAH did not render the proceedings unfair or impair the correctness of the Department’s action based on the weight of the credible evidence. For one, the Department presented its case to the probable cause panel 20 days after issuing the ERO and issued the initial Complaint the next day. It presented the new allegations to a probable cause panel 65 days after the ERO (and 44 days after filing the initial Complaint) and issued the Amended Complaint the next day. The Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day after Respondent requested a hearing on it and 45 days after requesting a hearing on the initial Complaint. Based on this timeline, the Department met its obligation to promptly institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); see also § 456.073(5), Fla. Stat. (“Notwithstanding s. 120.569(2), the department shall notify the division within 45 days after receipt of a petition or request for a formal hearing.”); Fla. Admin. Code. R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28- 106.2015, F.A.C.”). The weight of the credible evidence also failed to establish any resulting prejudice to Respondent. He presented no evidence as to how the Department’s decision to investigate the new allegations and issue the Amended Complaint before transmitting the case to DOAH prejudiced his ability to defend against the allegations. The Department notified Respondent of M.V.S.’s complaint and allowed him to provide statements during the investigation, make arguments before both probable cause panels, conduct discovery, and adequately prepare for and defend against the allegations at a final hearing. The fact that the VA did not comply with Respondent’s discovery requests or make witnesses available is neither attributable to the Department nor a reasonable basis to argue prejudice, particularly where Respondent failed to enforce subpoenas or challenge the VA’s discovery objections in state or federal court. The undersigned simply cannot find that the Department violated Respondent’s due process rights by waiting 45 days to transmit the case to DOAH while the Department investigated new allegations involving two other female patients. At best, Respondent’s alleged prejudice is that the Department was able to prosecute him for sexual misconduct with two additional patients, which it had authority to do independently by separate complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The latter option could have resulted in even more delay, as DOAH may have had to relinquish jurisdiction to allow for the new allegations to be approved by a probable cause panel if the Department had not already completed that necessary step. S.R.’s Two Appointments with Respondent in 2014 and 2015 In 2014, S.R., a 58-year-old veteran who just moved to Orlando, requested a neurology referral because she suffers from multiple sclerosis (“MS”). The VA referred her to Respondent with whom she had two office visits. On December 29, 2014, S.R. had her first appointment with Respondent at the VA Lake Baldwin facility. Respondent’s assistant took S.R.’s vitals but did not remain in the room during the examination.3 S.R. never asked for a chaperone to be present and one was not offered to her. Respondent entered the room and made introductions with S.R. They discussed the new VA facility in Lake Nona, where Respondent lived, and restaurants in that area. According to S.R., Respondent said that he hoped to see her, though she did not understand what that meant. S.R. explained that she suffered her first MS attack over 30 years earlier but only recently was diagnosed with the disease after a neurologist ordered an MRI. She discussed her current symptoms, including back pain, muscle spasms, and fatigue. Respondent told her that back problems were common for women with large breasts, which she thought was odd. But, she expressed hope that Respondent could continue to help with her symptoms much like her prior neurologists in South Carolina and South Florida. Respondent examined S.R. and tested her reflexes, vision, coordination, and physical limitations. Respondent said he wanted to listen to S.R.’s heart. Without even trying to listen over her clothes, he asked S.R. to lift her t-shirt. He began rubbing his stethoscope across both her breasts and under her bra. He then cupped the bottom of her left breast with the palm of 3 The VA advocate’s report indicated that S.R. said that Respondent instructed his assistant to leave the room prior to his examination. However, S.R. testified credibly that she never made that allegation and her handwritten statement to the VA advocate also contained no such allegation. That the VA advocate’s hearsay report says otherwise neither calls S.R.’s credibility into doubt nor undermines the clear and consistent nature of her testimony. his hand while holding the stethoscope between his fingers and touching her nipple. This portion of the examination lasted about ten seconds. At the end of the initial visit, Respondent discussed treatment plans, medication, and physical therapy with S.R. They scheduled a follow-up appointment for several months later. Respondent documented S.R.’s records based on his examination. Although S.R. testified credibly that she had a heart murmur, Respondent noted a regular heart rate and rhythm with no murmurs. He also continued S.R.’s prescription for Diazepam, though several months later he placed an addendum for that initial visit record to indicate the prescription was improperly entered under his name and that he would defer to S.R.’s primary care physician for that medication. S.R. thought Respondent’s conduct was weird because no doctor had ever listened to her heart under her clothes or touched her breasts in that manner. She felt confused and uncomfortable, but she did not report the incident then because she trusted Respondent as her doctor and thought it could have been a mistake. She also thought Respondent might be the only neurologist at the VA. She discussed the incident with her husband and decided that she would be more aware at subsequent appointments. On March 30, 2015, S.R. had her second visit with Respondent at the Lake Nona facility. She arrived early, but the office staff delayed bringing her back and then had trouble taking her vitals. S.R. did not request a chaperone for this visit because everyone seemed very busy. Respondent entered the room and they were again alone. Respondent seemed irritated because he thought S.R. arrived late, which made her defensive. She complained of left hip pain and told Respondent that she had not gone for physical therapy. He examined her hip by lifting her leg, which hurt. She then sat up and he said he needed to listen to her heart. Again, without attempting to listen over her t-shirt and bra, he told her to lift her t-shirt. Because of what occurred during the last visit, S.R. kept her arms tightly by her sides to limit Respondent’s ability to touch her breasts. He kept using his elbow to try to relax her arms while moving the stethoscope higher over her breasts, eventually cupping her breast under her bra. He grabbed at her breasts but got frustrated by her refusal to relax her arms. At that point, Respondent threw the stethoscope into the sink and became angry, which startled S.R. and made her uncomfortable. She requested that he continue her Diazepam prescription to help her sleep at night, which she said her prior neurologist prescribed for muscle spasms. Respondent told her that the drug was for anxiety, not muscle spasms, though he documented in her record that she should continue to take the medication. Respondent also documented again that S.R. had a regular heart rate and rhythm. S.R. felt uncomfortable during the entire visit. She had never had a neurologist get angry or confrontational with her, but she decided not to report the incidents at that time because she was in pain and just wanted to go home. About a month later, she awoke in the middle of the night and realized the inappropriateness of Respondent’s conduct. In August 2015, S.R. returned to the Lake Nona facility to schedule an appointment with a different neurologist. When she saw Respondent’s name on the signage, she immediately went to the patient advocate to report his misconduct in the hope of preventing him from engaging in the same behavior with other patients. She met with the patient advocate and the VA police, and she completed a written statement. Although she was supposed to testify before the VA investigative board, she had trouble finding the room that day and left without speaking to anyone. Based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations, the VA closed the matter as unsubstantiated. However, the matter was referred for clinical and/or administrative follow- up, which resulted in the VA updating its chaperone policy to require signs to be posted in the offices to put patients on notice of their right to ask for a chaperone. S.R. did not report the incidents to the Department at the time because she did not realize she could do so. But, when the Department contacted her in 2021 about this case, she agreed to participate and testify. The undersigned found S.R. to be a highly credible witness who unequivocally testified about Respondent’s inappropriate sexual behavior. S.R.’s testimony was compelling, specific, clear, and materially consistent with the statements she made when the incidents first occurred. Respondent testified about his treatment of S.R., but he conceded he had no independent recollection of the visits. Instead, he based his testimony on what he documented in her medical records and his standard practice. Respondent testified that he conducted a thorough examination in the same manner that he evaluates all of his new patients. He performed a cardiac examination over S.R.’s clothing by placing a stethoscope on her chest in several areas to listen to her heart. He confirmed that he never places the stethoscope on, or allows his hand to come into contact with, a patient’s breasts and that it was impossible that such contact happened with S.R. even inadvertently. He also said that he always has a chaperone present if he needs to listen to a female patient’s heart under her clothing and that is exactly what he would have done had he needed to do so with S.R. Respondent denied engaging in any inappropriate behavior with S.R. and suggested instead that she misperceived what happened. However, he offered no credible explanation for S.R. having such a misperception, except to accuse her of being upset for his refusal to prescribe her Diazepam. S.R.’s medical records fail to document any cognitive impairment and Respondent confirmed that she did not suffer from hallucinations or ailments that would cause her to imagine things that did not happen. Although S.R. admitted that it took her a few months to fully realize what Respondent had done and to report it to the VA, the undersigned has no hesitation in finding her testimony to be a fair and accurate account of Respondent’s actual conduct. The records themselves also call the veracity of Respondent’s testimony into question. Although S.R. credibly testified that she had a heart murmur, Respondent documented the lack of such a murmur even after conducting two cardiovascular examinations of her. Had Respondent conducted a proper cardiac examination, he should have identified and documented her murmur. Further, it cannot be ignored that the treatment plan for both visits continued her prescription for Diazepam, even though Respondent—after the first visit but before the second visit—placed an addendum in the record to indicate that S.R. needed to obtain the prescription from her primary care physician. Respondent’s notes for the March 2015 visit also document that Diazepam continued to be an active prescription for S.R., undermining the suggestion that she would fabricate an allegation of sexual misconduct against Respondent on that basis. Moreover, Respondent’s expert neurologist had never heard of a patient fabricating sexual misconduct allegations against a doctor for failing to prescribe medication. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with S.R. During the first visit, Respondent directed S.R. to lift her shirt and inappropriately rubbed his stethoscope across her breasts and under her bra, cupped her left breast with the palm of his hand while holding the stethoscope between his fingers, and touched her nipple. During the second appointment, Respondent directed S.R. to lift her shirt again. Although S.R. kept her arms tightly against her sides to try to limit Respondent’s ability to touch her inappropriately, he inappropriately rubbed the stethoscope across her breasts, cupped her breast under her bra, and grabbed at her breasts. Respondent did so on both occasions without first attempting to listen to S.R.’s heart over her clothing, which itself was contrary to the standard of care. M.H.’s Four Appointments with Respondent in 2015 and 2016 In late 2015, the VA referred M.H., a 39-year-old veteran, to Respondent for a neurological evaluation after she had an abnormal MRI showing white matter changes in her brain following an illegal drug overdose. M.H. had four office visits with Respondent at the Lake Nona facility on August 12, 2015, November 6, 2015, June 23, 2016, and August 1, 2016. During the first three visits, Respondent discussed M.H.’s medical history, prior drug use, and symptoms, including migraines, pain, possible nerve damage, and cognitive and motor issues; he also conducted physical and neurological examinations. During the fourth visit, Respondent performed a nerve block procedure to address M.H.’s migraines. M.H. testified about the visits and her uncomfortable interactions with Respondent. During several visits, he discussed the lack of sex with his wife and that she allowed him to step outside the marriage. He either asked M.H. out on a date or to meet at a hotel, which she interpreted as an offer of sex, and he also asked if he could call her. He asked her questions about her sex life several times, including how often she had sex with her boyfriend, what positions they liked, the size of her bra, and whether sex was painful. M.H. testified that Respondent also acted inappropriately. During one visit, he either lifted her shirt or asked her to lift her shirt to look at her breasts and listen to her heart. He once blocked the door to prevent her from leaving the room and attempted to put his arms around her to hug her. He once put his hands on the bottom of her buttocks, like a lover’s caress. During the fourth visit when the nurse left the room after the procedure, he had an erection and rubbed it through his pants against her leg while trying to give her a hug. She said that she told her mother in the waiting room after that visit that Respondent had rubbed his erection on her. She also said that he told her not to say anything about their interactions at each visit. In August 2016, M.H. reported Respondent’s conduct to the VA; she did not report the conduct to the Department because she did not know she could. The VA investigative board conducted sworn interviews of M.H., Respondent, his nurse, and a medical student, and it considered numerous letters of recommendation from Respondent’s patients and colleagues. It found no conclusive evidence of sexual misconduct based on Respondent’s testimony, as corroborated by testimony from a nurse and a medical student. M.H. testified passionately about Respondent’s conduct and how it made her feel. However, her recollection of the details—as to what occurred, when, and who was present—was fuzzy and inconsistent in material ways with the testimony she gave to the VA board in 2016, her deposition testimony in this case, and the testimony of her mother. M.H. stated that her recollection in 2016 was better than now, but the inconsistencies outlined below affect the weight to be given to M.H.’s testimony. M.H. testified initially that she and Respondent were alone in the examination room at some point during each visit. M.H. testified that she asked to have her daughter present during either the third or fourth visit, but Respondent refused. M.H. also testified on cross examination that she could not recall if her mother was in the room with her during the first two visits, only to later confirm that her mother must have been present during those two visits based on the testimony she gave before the VA board in 2016. M.H.’s mother testified that she accompanied M.H. to two of the visits, though she could not recall the dates. Contrary to M.H.’s testimony, her mother said she neither came back to the examination room nor met Respondent at any visit and based her testimony solely on what M.H. said. M.H.’s mother testified that M.H. said that Respondent asked her out after one visit and rubbed his erection against her back after another visit, which contravened M.H.’s testimony that Respondent rubbed his erection against her leg while hugging her from the front. Before the VA board in 2016, and contrary to her testimony at the final hearing, M.H. said that Respondent acted professionally during the first two visits and that her mother was present in the examination room both times. M.H. testified that Respondent became unprofessional while they were alone in the room during the final two visits, at which he asked inappropriate questions about her sex life. M.H. explained that she was offered a chaperone before the third visit, but she refused because nothing unprofessional had occurred before, and that Respondent refused to allow her daughter to be in the room during the procedure on the fourth visit. M.H. said Respondent grabbed her buttocks during the third visit and, during the fourth visit, he blocked the door after the procedure, grabbed her buttocks, lifted her shirt to comment on how much he liked her breasts, and rubbed his erection through his pants on her leg. When cross-examined about the inconsistencies, M.H. testified at the final hearing that she may have been protecting Respondent by saying in 2016 that he acted professionally during the first two visits, though she now recalls him acting unprofessionally during all four visits. During her pre-hearing deposition in this case, M.H. testified that Respondent asked questions about her sex life and bra size, discussed his open marriage, and asked her out during the first visit, but he did not touch her inappropriately. M.H. testified that Respondent refused to allow her daughter to stay in the room with her during the second visit and, after the examination, he blocked the door, grabbed her and tried to hug her, rubbed his erection on her stomach and leg, and again reiterated that he was allowed to have sex outside his marriage. She testified that Respondent discussed his open marriage and asked her to date him during the third visit; M.H. said that the office refused to allow her mother to accompany her in the room. M.H. testified that the only uncomfortable thing that Respondent did during the fourth visit was ask her out repeatedly. M.H. testified that Respondent never asked if she wanted a chaperone at any of the visits, though she later acknowledged that a chaperone was present at the fourth visit. Respondent testified about his treatment of M.H. based only on what he documented in her chart, as he had no independent recollection beyond his review of her medical records. Respondent denied any inappropriate behavior with M.H. He claimed that he never allowed himself to be alone in a room with her because she was engaging in manipulative, drug-seeking behavior. He basically accused M.H. of fabricating the allegations against him because he refused to prescribe her pain medication. However, Respondent’s accusations against M.H. are questionable for several reasons. Respondent never documented in her record his concern about M.H.’s alleged drug-seeking behavior, that a chaperone needed to be present at all visits, or that she had requested pain medication. Although he documented the presence of his nurse and a medical student at the fourth visit, he failed to do the same for the first three visits. One would expect a physician—surely one as concerned about a patient’s drug-seeking history and behavior as Respondent now claims to be—to document those concerns and the presence of chaperones in the medical record to prevent any future false accusation. This is particularly so given that Respondent, at the time, had recently been accused of misconduct by S.R., which he believed was both false and based on her drug-seeking behavior. The medical records also confirm that M.H. informed Respondent at the June 2016 visit that she had been prescribed Lyrica for pain while in jail and that it was working. Respondent noted, “Renewed lyrica,” in the plan/recs section of the record for that visit. Respondent also noted Pregabalin, the generic name for Lyrica,4 in both the active and pending medication lists for both the June and August 2016 visits. The weight of the credible evidence does not support Respondent’s claim that M.H. fabricated her allegations because he refused to prescribe her pain medication, particularly given her credible testimony that she did not 4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details. need pain medication because Respondent continued her Lyrica prescription. It also bears repeating that Respondent’s own expert had never heard of a patient falsely accusing a doctor of sexual misconduct for refusing to prescribe medication. After evaluating the evidence, the undersigned finds M.H. generally to be a more credible witness overall than Respondent. She testified passionately and credibly about Respondent’s requests to meet her outside the office because he had an open marriage and his wife allowed such conduct. She also credibly explained how Respondent commented on the size of her breasts, grabbed her buttocks, and rubbed his erection on her. Importantly, however, the undersigned cannot ignore that the clear and convincing evidence standard applies in this case. M.H.’s recollection was too fuzzy and inconsistent to definitively find without hesitation that Respondent engaged in the exact sexual misconduct alleged by M.H. and set forth in the Amended Complaint. If the Department’s burden in this case was a mere preponderance of the evidence, the undersigned would likely find that it proved Respondent engaged in sexual misconduct with M.H. But, the clear and convincing evidence standard applies herein. And, because M.H. could not provide the type of definitive and clear testimony required in this disciplinary action, the Department failed to prove that Respondent engaged in sexual misconduct with M.H. M.V.S.’s One Appointment with Respondent in 2020 On November 30, 2020, M.V.S., a 68-year-old woman, had an initial neurology consult with Respondent at Orlando Health. M.V.S. sought a neurologist based on an abnormal MRI showing a cyst near her pituitary gland and complaints of neck pain radiating to her shoulder and arm. After filling out paperwork in the reception area, a medical assistant or nurse brought M.V.S. to an examination room. The room had an examination table, which could be lowered, a counter, and a chair. M.V.S. sat in the chair while the assistant took her vitals. Although M.V.S. has a history of blood pressure spikes, for which she has called 911 and even gone to the hospital several times, her blood pressure was within normal limits that morning. The assistant waited for M.V.S. to complete the paperwork and then left the room. Respondent entered the room a few minutes later and closed the door behind him. He wore green scrubs and a white lab coat; she wore a skirt, blouse, bra, and underwear. He and M.V.S. were alone for the remainder of the appointment. They initially discussed M.V.S.’s medical history and complaints. M.V.S. talked about her aunt, who had symptoms of Alzheimer’s disease and did not recognize her on a recent visit. She was concerned about the disease because she recently had forgotten some small details, like the name of an actor in a movie. M.V.S. did not believe she had significant memory issues, but she wanted research on the disease because it ran in her family. Respondent asked M.V.S. if she lived with anyone, which she interpreted as a question relating to her safety. She informed him that she lived alone within close proximity to a fire station. She also mentioned that her daughter lived in Orlando and her fiancé lived in Longwood. Respondent asked if she had sexual relations with her fiancé; she explained that they did not because her fiancé had prostate cancer. M.V.S. thought the question was odd given the reason for the appointment and because no other physician had ever asked that type of question before. Respondent moved on to M.V.S.’s complaints of neck pain. She explained that she experienced pain on the left side of her neck that radiated to her left shoulder and left arm. At that point, Respondent directed M.V.S. to sit on the table so he could examine her. While standing to M.V.S.’s left, Respondent rubbed and squeezed her neck and shoulders with his thumbs and fingers for a couple of minutes. No other doctor had examined her in that fashion before. He said she felt tense, but never asked if she experienced pain during the examination. She confirmed that it definitely felt like a neck and shoulder massage, which she had received many times. She noted that her cardiologist had recently palpated her neck for pain by using two fingers to poke and feel around, which was different than Respondent’s examination. Indeed, when a doctor palpates for pain, they typically use two fingertips to lightly press and prod in the trouble areas and obtain feedback from the patient about the level of pain. Respondent then examined M.V.S.’s spine while she stood in front of him. He thereafter examined her reflexes, eyes, and extremity strength while she sat on the table. He also conducted a memory test, which she passed. M.V.S. did not recall Respondent listening to her heart during the visit. At that point, Respondent directed M.V.S. to lie face-down on the table, which already was lowered. He asked if he could raise her skirt and she said, yes, because she believed it related to a muscular or skeletal examination. He raised her skirt and, over her underwear, rubbed her lower back and eventually moved down to her buttocks using both of his hands. He rubbed and squeezed both of her buttocks. She confirmed it felt like a deliberate, prolonged massage, which had never happened to her at a doctor’s office. Her mind raced, she felt frozen, and she could not believe what was happening. After one to two minutes, Respondent told her to sit up because he heard a voice. She sat on the end of the table and he began massaging and squeezing her right breast while standing on her right. He told her that he had never done this before and that she was beautiful. She thanked him in a low voice, but she was afraid and felt trapped because they were alone, there were no witnesses, and she was unsure of what he would do. Respondent asked if M.V.S. was comfortable with him massaging her breast and he stopped when she said no. He moved to her left side and explained that his wife would not have sex with him, so she permitted him to have sex outside the marriage. He asked if M.V.S. would meet him for sex and she declined. Respondent asked if that was because her fiancé would object, and she confirmed they had a commitment. At that point, Respondent pulled his lab coat back and said, “Look at this. Look what you did to me.” Respondent revealed his erect penis, which M.V.S. confirmed was clearly visible through his scrubs. Respondent told her to keep this between us, said his assistant would be in shortly with paperwork, and left the room. M.V.S. waited for about seven minutes and, when no one came, she left the room, tried to hold her composure, and checked out. She said nothing before leaving because she felt unsafe and was unsure if anyone would believe her anyway. M.V.S. turned on her car’s air conditioning and drank water to calm down. Her heart was pounding, and she feared having a blood pressure spike. As soon as she arrived home, M.V.S. called her daughter to tell her what happened. M.V.S.’s daughter, who is a nurse, told her to call the police. M.V.S. called the LMPD that afternoon. The officer with whom she spoke suggested that she file a complaint with the Department, which she did on December 6, 2020. Both the Department and the LMPD investigated the allegations, which included interviews of M.V.S. and Respondent.5 M.V.S. also reported the incident to Orlando Health risk management. The undersigned found M.V.S. to be a highly credible witness who testified passionately and definitively about Respondent’s inappropriate sexual behavior during the office visit. She immediately reported it to the LMPD and, within a week, filed complaints with both the Department and Respondent’s employer. M.V.S.’s testimony was clear, specific, detailed, compelling, and materially consistent with the interviews and statements she gave immediately following the visit. Respondent testified about his treatment of M.V.S., but—as he did with the S.R. and M.H.—he conceded he had little to no independent 5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case into inactive status pending further evidence. recollection of her or the visit. Instead, he reviewed her medical records, which refreshed his recollection of what occurred during the visit. Respondent denied engaging in any inappropriate behavior with M.V.S. that could have been interpreted as sexual or outside the scope of a proper examination. He testified that he conducted a neurological examination, palpated her neck for pain, checked her reflexes, and conducted a memory test. He said he never massaged her neck and shoulders, touched or massaged her breasts or buttocks, discussed his marriage, solicited her to have sex, said she was beautiful, or revealed an erection through his scrubs. He also said she could not have laid face-down on the table because he never lowered the back or extended the footrest; he confirmed that he would have brought in a chaperone if he needed her to lie on the table. Respondent testified that M.V.S.’s accusations against him were the product of memory loss and cognitive impairment. Although M.V.S. reported a family history of Alzheimer’s and a fear of mild memory loss, Respondent documented that she performed well on her memory and cognitive examinations. M.V.S. and her daughter testified credibly that she did not experience significant memory loss beyond forgetting the name of an actor in a movie. Respondent himself confirmed that M.V.S. did not suffer from hallucinations or ailments that would cause her to perceive things that were not there—a point with which his expert neurologist agreed given the way Respondent documented the medical record. And, more importantly, M.V.S.’s ability to recall the specific details of the visit and do so consistently with the statements she made previously undermine Respondent’s belief that cognitive impairment caused her to fabricate her allegations. The weight of the credible evidence simply does not support the suggestion that M.V.S. misperceived, confabulated, or fabricated her allegations based on memory loss or cognitive impairment. Additionally, Respondent attempted to discredit M.V.S. by suggesting that she may have come onto him. Indeed, he testified that she was verbose and told him during their initial discussion about her history that her fiancé was older, that she was a 60s baby, and that she had not been touched in a while. Aside from M.V.S.’s credible testimony that she said no such things, it cannot be ignored that Respondent conceded that his memory of the visit was based on his review of the medical record, which contained no reference to these comments even though Respondent says they were odd. Respondent also presented evidence that M.V.S. had previously called 911 on multiple occasions relating to blood pressure spikes to undermine the veracity of her testimony. However, the recordings of the 911 calls reveal an individual who, despite being concerned about her blood pressure, is alert, aware of her surroundings, clear-headed, and in no way suffering from an illness that would raise doubts about the veracity of her testimony or her credibility overall. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with M.V.S. He inappropriately massaged her neck and shoulders, buttocks, and breast. He disclosed that he had an open marriage and solicited M.V.S. to meet him for sex outside the office. He also told her that she was beautiful and revealed his erection through his scrubs.
Conclusions For Petitioner: Kristen Summers, Esquire Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Jon M. Pellett, Esquire Pennington, P.A. 12724 Gran Bay Parkway West, Suite 401 Jacksonville, Florida 32258
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, issue a final order finding Respondent committed sexual misconduct prohibited by sections 458.331(1)(j), 458.329, and 456.063(1), suspending Respondent’s license for two years, and thereafter permanently restricting his license to either prohibit him from seeing female patients or, at a minimum, doing so without a chaperone present.7 DONE AND ENTERED this 28th day of October, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2021. 7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other discipline imposed through final order, “shall assess costs related to the investigation and prosecution of the case.” Prior to the final hearing, the parties agreed to bifurcate the investigative costs issue (including Respondent’s argument that such costs should not be assessed because they are based on unpromulgated rules) pending resolution of the merits of the Amended Complaint. Upon further reflection, the undersigned concludes that resolving such an issue—even in a bifurcated proceeding—is premature because the Board has not yet issued a final order disciplining Respondent or followed the procedure in section 456.072(4), which requires it to consider an affidavit of itemized costs and any written objections thereto. It is in those written objections where Respondent may challenge the costs as being based on an unpromulgated rule. And, if Respondent’s written objections create a disputed issue of fact, the Department can transmit the investigative costs issue to DOAH to resolve that dispute, just as it did in Case No. 20-5385F. COPIES FURNISHED: Jon M. Pellett, Esquire Pennington, P.A. Suite 401 12724 Gran Bay Parkway West Jacksonville, Florida 32258 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Paul A. Vazquez, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Kristen Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
