Findings Of Fact Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period. At the time of F.S.' 1984 visit, the standard of care for a male over 40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back. Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on F.S. by Respondent. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point, F.S was referred for blood tests specific to prostate cancer and to an urologist. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history. The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido. On March 20, 1989, Respondent began treating Patient C.C. and admitted C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital. Respondent's discharge summary for C.C. dated April 4, 1989, included the following: . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation. She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within 24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . . The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons. Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her. On June 20, 1989, Respondent received a telephone call from C.C. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida. Respondent was seeing the patient as both a friend and a medical doctor. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed. Respondent did not make any sexual advances toward C.C. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints. ENTERED this 3rd day of March, 1993, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1993.
Findings Of Fact At all times pertinent to the issues heard at this hearing, Respondent was licensed to practice medicine in the State of Florida under License No. ME- 0022000 and was in practice in Orlando. Respondent is Dr. Mario Vega. Dr. James J. Schoeck, a physician practicing in Orlando, was, during 1980, Chairman of the Board of Censors of the Orange County Medical Society (OCMS). In that capacity, he had occasion to contact Respondent based on a letter from Dr. Alberto Herran, Chairman of the Patient Review Committee, founded on a grievance letter from a former patient of Respondent, Debra Mitchell. Ms. Mitchell had complained that she had gone to see Respondent on a medical matter and he had given her a 20-minute pelvic examination without wearing a surgical glove and without a nurse present. Since this was the Respondent's first reported offense allegation, Dr. Schoeck merely discussed the situation with him and got his side of the story, to the effect that a female employee was just down the hall during the examination and nothing out of the ordinary was done. No further action was taken by the OCMS as a result of this. It is not a unique type of complaint for the OCMS which, upon investigation, finds most to be unfounded. Debra Hall Mitchell saw Respondent in his office on September 19, 1980, because she was having a pain in her lower abdominal area, thought she might have an infection of some kind, and wanted it checked. When she got to the office, the only people there were Respondent and his wife, who after weighing her and doing the preliminary activities, took her into an examining room and asked her to disrobe and don a paper examining gown. When Respondent came in, he asked her to lie down on the examining table and asked what her problem was. Ms. Mitchell told him about the pain she was having. At that point, she thought it odd that there was no nurse present in the room with them, but because she had a strong trust in doctors, she did not worry about it. The pelvic examination took approximately 20 minutes with Respondent having the fingers on one hand in her vagina while he pushed on her abdomen with the other hand. When he was finished, he had her stand in front of him with her back to him and examined her vagina with her standing up, again using his other hand to push on her stomach, from time to time asking her if what he was doing hurt her. During the course of the examination, because it took as long as it did, Ms. Mitchell became alarmed and asked Respondent if anything was wrong. He replied that one of her ovaries was enlarged, but not to worry about it. When she got off the table, it was then she noticed that Respondent was not wearing any surgical gloves. She is not sure if he began the pelvic examination by using any type of instrument. After completing the examination, Respondent told Ms. Mitchell to get dressed and left the room. After she was dressed, he came back in, told her he did not find anything except for a slightly enlarged ovary, gave her a prescription for an antibiotic, and requested she come back in a week. When she stopped at the front desk, she did not say anything to the lady there, the Respondent's wife, because she was embarrassed. She merely did the necessary administrative things, including making another appointment and arranging for payment by Medicaid and left. However, as she began telling her friend about what happened on the way home, she got more and more upset; and when she arrived home, she called a female doctor friend of hers who advised her to write to the Medical Society, which she did, but not until two months later. Also, she discussed the situation with a couple of her very closest friends during this period to get advice on what to do about this situation. She neither had the prescription given her by Respondent filled, nor went back to see him again. Several weeks later, when her condition had worsened, she went to see another physician. On April 16, 1982, Georgia S. Fields, 17, went to the Respondent's office to get her birth control pills. She had been to see him four or five times previously, having been taken there initially by her mother, who was also Respondent's patient. When she entered his examining room, Respondent asked her to sit down and asked how her mother was. Then, according to the witness, he had her stand up, and, sitting to the side of her, unzipped her dress and checked her breasts. He then ostensibly pulled her underpants down below her knees and massaged her clitoris for about 10 minutes, during which time he said nothing to her. He then reportedly examined her vagina and told her she was dry. After these activities went on for a while, according to the witness, he then moved her chair behind her and brushed his lips, like a light kiss, across her shoulder. With that, the witness called an immediate halt, at which point the Respondent pulled her panties back up, wrote out her prescription and returned to his office while she went up to the desk. According to the witness, this was unusual, as he usually would accompany her to the desk. Ms. Fields, feeling quite upset about this situation, told the lady at the desk what had happened and refused to pay the bill. When she got home that day, Ms. Fields told her mother what ostensibly had happened and, on the next morning, reported it at the police department. Ms. Fields, as was stated above, has seen Respondent on several different occasions going back to early 1981. Though she denies having had any type of vaginal discharge, she admits to several infections, and her medical records indicate she was treated on various occasions for vaginal discharge. Ms. Fields also states she came in on the day in question only to get a refill on her birth control pills, yet both Respondent's testimony and his patient notes clearly reflect that she complained about low back pain resulting from an injury at work and requested information about a possible disability. Catherine Lynn Griffin, Ms. Fields' cousin, recalled a conversation she had with her shortly after Ms. Fields' last visit to Respondent. At that time, Ms. Fields stated she was angry with Dr. Vega because he would not give her a statement regarding her work. Ms. Fields indicated at the time that she had filed a complaint against the doctor, although she would not say why. She was heard to state at that time words to the effect that "I'll either get some money from him, or he'll lose his license." Coincidentally, Ms. Fields' medical records on file at her work place, Disneyworld, reflect that on June 1, 1982, somewhat over a month after her last visit to Dr. Vega's office, she was seen in the Disney doctor's office complaining of pain in the low back area resulting from pushing a wheelbarrow up a hill while at work in the landscaping department on May 28, 1982. At that time, the doctor put her on light duty for one week. She was seen again in follow up on June 8 and June 22. There is no evidence of any permanent injury. About three weeks after the alleged incident, on April 16, 1982, Ms. Fields' mother came into Respondent's office and apologized to Mrs. Vega, who was working there at the time, saying that she knew her daughter's allegations were not true. Mrs. Fields is still currently a patient of Respondent. Respondent denies any impropriety with Ms. Fields on this or any other occasion. While admitting he did not have a witness in the room while examining Ms. Fields, he states there was no need to do so because there was no pelvic examination conducted. He contends that the visit concerned itself with the birth control pills he prescribed, discussion of resolved prior vaginal discharge problems and continuation of discussion regarding a certification of Ms. Fields' mother as an alcoholic, which he refused to do. The main purpose of the visit related to an examination of her back concerning her request for a disability certificate for work. He also refused to give her the certificate. Dr. Vega also referred to his admitted failure to use gloves, which other evidence showed is sometimes the case with other doctors as well. Both the presence of a witness and the use of gloves are protection for the physician, not the patient. The first protects against unwarranted allegations of improper conduct, and the second, while admittedly protecting the patient from possible infection by the hands of the doctor, equally as important and more likely, protects the doctor from contamination by his patient. Ms. Fields was, at the time of the alleged incident, under 18 years old. She dropped out of school in the ninth grade. She has been described in her medical records as having acne, unpleasant odors from the vaginal area, cervical and vaginal discharges secondary to poor hygiene habits, oily seborrhea and halitosis. Considering the inherent probabilities and improbabilities of the evidence presented, and the permissible influences to be drawn therefrom, the evidence fails to establish sufficiently that this Respondent conducted a vaginal examination on this occasion or made any sexual advances toward Ms. Field by kissing her shoulders.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner dismiss the Administrative Complaint herein. RECOMMENDED this 17th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Ms. Dorothy Faircloth Department of Professional Executive Director Regulation Board of Medical Examiners 130 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation 130 North Monroe Street Michael Sigman, Esquire Tallahassee, Florida 32301 Post Office Box 1786 Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Peter Alagona, Jr., is licensed to practice medicine in the State of Florida. He is board-certified in internal medicine with a subspecialty in cardiology and has practiced cardiology since 1981. There is no evidence that the Respondent has been the subject of professional discipline except for this proceeding. In 1989, the Respondent became acquainted with V.P., who worked as a receptionist at a hospital where he had practice privileges. Their work relationship became friendly and, although the Respondent was married and had children, he and V.P. responded to each other's friendly manner by mutual flirtation. At first, their flirting was discrete but later became more open and romantic. The Respondent began to write V.P. notes and greeting cards and send her flowers. In approximately May, 1989, V.P. indicated her willingness to begin an intimate and sexual relationship. The Respondent did not hesitate to oblige her. There is no evidence that the Respondent used a doctor-patient relationship to induce V.P. to engage in sexual activity with him, as alleged. When the sexual relationship began, there was no doctor-patient relationship between them. During her tenure at work at the hospital, V.P. from time to time complained of a rapid heart beat, and one of the four cardiologists at the hospital would respond to her complaint. The Respondent was one of the several doctors who had occasion to respond. No treatment ever was required. V.P.'s heart beat would soon return to normal, and everyone would return to work. No true doctor-patient relationship was established, and neither the Respondent, the other doctors nor V.P. ever thought one had been established. The allegation that the Respondent essentially intentionally used drugs he prescribed for V.P. during the course of their affair to control her and prolong the sexual relationship with V.P. against her will hinges on the following reference in V.P.'s deposition transcript: Q. Just so that I'm clear, did Alagona ever tell you that if you did not have sex with him, he would not write prescriptions for you? A. Those aren't the words. He has made comments about, "Where are you going to get your prescriptions?" Q. When did he make those comments? A. I don't know. During the relationship, at the end of the relationship. Q. Give me some of the circumstances surrounding those comments. A. It was, I'm sure, during an argument or something. I don't know. In view of all the evidence, that allegation is rejected as not proven. It is factual that, in another poor judgment that flowed from the poor judgment in initiating and conducting the affair in the first place, the Respondent began to act as V.P.'s personal physician for limited purposes during the course of the affair. When she complained of migraine headaches, he prescribed pain medication such as Tylox, a Schedule II controlled substance containing oxycodone, and Inderal, a beta-blocker and a legend drug. For stress, he prescribed Valium, which contains diazepam, also a legend drug. Although the Respondent clearly was acting as the doctor in a doctor-patient relationship when he prescribed these drugs, he still did not view himself as acting in that role and did not keep a written record of the drugs or the course of treatment in connection with those prescriptions. The allegation that the Respondent failed to practice medicine in accordance with required standards of care by not ordering the patient to receive mental health counseling but instead inappropriately allowing the patient to remain on Tylox also depends in large part on the testimony of V.P. In view of all the evidence, V.P.'s testimony pertinent to this allegation is rejected. The evidence was that the Respondent repeatedly advised V.P. to seek counseling, albeit not for drug abuse. Until April, 1990, the Respondent was not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions were not excessive and would not, in and of themselves, have indicated to the Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox; nor did V.P. exhibit clear signs of drug abuse or addiction prior to April, 1990. However, V.P. apparently was obtaining Tylox and other legend drugs from other sources without the Respondent's knowledge. She was seeing other physicians for the purpose of obtaining prescriptions, and she also was forging the Respondent's and other doctors' names to prescriptions to obtain additional drugs illegally. (One of the doctors whose name she forged predeceased the date of the forged prescription.) In April, 1990, the Respondent was notified that V.P. had been hospitalized for a drug overdose. In response to the request for advice from the attending physician, the Respondent recommended a psychiatrist for counseling. However, V.P. did not cooperate. She attended only one counseling session and refused further counseling. After the overdose hospitalization, the Respondent did not prescribe any more Tylox. However, again without the Respondent's knowledge, V.P. continued to obtain Tylox and other drugs from her other sources. The Respondent's judgment continued to be distorted and poor as a result of his intense sexual and romantic relationship with V.P. He continued to urge V.P. to obtain counseling for several reasons but, again, not specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and she began putting pressure on the Respondent to divorce his wife and marry her. She began acting erratically, and her judgment also was poor. During a week- long visit to her family's home during the summer of 1990, she contacted an old boy friend, married him, changed her mind, and began annulment proceedings. By late 1990, V.P. started dating another doctor, and the pressure on both V.P. and the Respondent increased. The Respondent was unable to decide what to do, and the stress got ever greater as V.P. threatened to end the affair with the Respondent. While probably genuinely concerned for V.P.'s welfare, the Respondent probably also believed that, if V.P. got counseling, she would "see the light" and decide not to end their affair. Finally, the Respondent himself felt the need for counseling due to the stress of the affair, and he probably believed that she felt the same stress. Eventually, in early 1991, V.P. followed through on her threat and made it known to the Respondent that she was dropping him and choosing the other doctor. For some time, the Respondent was devastated and continued to try to persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute, holding out to the Respondent some hope that she would return to him if he divorced his wife. Finally, practically an emotional wreck and despairing of any other way to get over his affair with V.P., the Respondent checked himself into an out-of-town residential psychiatric program. He purposely did not tell V.P. where he was, but she found out and, on the day of his discharge, sent him flowers with a card saying that she would never let him go. Eventually, the affair ended, and V.P. married the other doctor soon after.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent not guilty under Counts I and II but guilty under Count III; (2) placing him on probation for two years; (3) requiring him to take appropriate continuing medical education, if available, dealing with the physician-patient relationship and the prudence of avoiding the dual sexual/physician-patient relationship; and (4) imposing on him an administrative fine in the amount of $2,500. DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to second sentence of 5., although he cannot now remember when he prescribed Tylox, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately approximately when and what he last prescribed so as not to expose V.P. to a health risk. 6. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to the last sentence, although he cannot now remember his prescriptions, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately when and what he last prescribed so as not to expose V.P. to a health risk. 7.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that patients need to be kept under "surveillance." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. As to last sentence, rejected as not proven that all "drugs," in all doses, "control a patient's emotional state and level of pain." Accepted that some can, in certain doses, and otherwise accepted and incorporated to the extent not subordinate or unnecessary. Accepted that it is not the only indication; subordinate to facts contrary to those found, and unnecessary. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent "did not follow through with V.P.'s medical problems." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, rejected as not proven; third, accepted that she said it, but subordinate to facts contrary to those found. First sentence, rejected as not proven; rest, accepted that she said it, but subordinate to facts contrary to those found. Rejected as not proven that he reviewed all of the prescription and hospital records. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. To the extent not conclusion of law, accepted and incorporated. First sentence, rejected as not proven; second, cumulative; third, in part cumulative and in part rejected as not proven (that he had no justification); fourth, accepted but subordinate to facts contrary to those found (he did some diagnostic testing); and last two rejected as not proven in that the evidence was that V.P. rejected the Respondent's repeated recommendations to her that she seek mental health counseling, but otherwise accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, accepted but not necessary; rest, rejected as not proven. Respondent's Proposed Findings of Fact. 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate. Conclusion of law. Accepted and incorporated. 26.-27. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. In large part, argument and conclusion of law; in part, accepted but largely subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that it is "clear . . . that V.P. feels that Alagona left her." (Much of their behavior is difficult to explain, such as why V.P. would act as if she did not want to let Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely subordinate and unnecessary. Accepted but largely subordinate and unnecessary. Last sentence of C), rejected as contrary to the greater weight of the evidence that it is "safe to infer that V.P. forged these prescriptions." (The evidence raises the question and possibility of forgery, especially in the absence of testimony on the subject from V.P. and Palay, but it is not "safe to infer.") Otherwise, accepted but largely subordinate and unnecessary. First four sentences, argument and subordinate. Rest, generally accepted and incorporated to the extent not subordinate or unnecessary. (However, while V.P. may have been "in the emotional driver's seat," it does not appear that she knew where she was going.) Accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. As to the third and fourth sentences, there was no evidence as to the nature of doctors' "orders." But, based on the evidence, the Respondent did not "order" counseling. He suggested or recommended it and offered to help her get it, and V.P. declined. If the Respondent had "ordered" counseling, the patient still may or may not have followed his "order." In either case, it would appear that the critical decision is what a physician does in the face of the patient's failure to comply. It would seem that the only thing a physician reasonably can do in this situation is stop prescribing and, if necessary, terminate the physician-patient relationship. As to the rest, accepted but subordinate to facts found, and unnecessary. 39.-42. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Regional Office VI-Legal Division 9325 Bay Plaza, Suite 210 Tampa, Florida 33619 L. D. Murrell, Esquire 319 Clematis Street, Suite 400 West Palm Beach, Florida 33401-4618 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Respondent is a physician. In his office one morning he struck up a conversation with, and thereafter checked the blood pressure of, a nurse's assistant who, at the time, was working under contract for one of Respondent's patients. Respondent invited the nurse's assistant to come back to his office later, by herself, so that he could recheck her blood pressure, and she accepted his offer. Following her return to the doctor's office, Respondent began to engage in sexual activities with the woman, but she refused to reciprocate his advances. The issue in this case is whether Respondent committed sexual misconduct with a patient, a patient's guardian, or a patient's representative.
Findings Of Fact Dr. Carlos A. Cohen ("Cohen") is a board-certified infectious disease specialist who was, at all times relevant to this case, licensed to practice medicine in the State of Florida. His office is located in Palm Beach County, and he has privileges at several hospitals in that area. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Cohen. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. The events that gave rise to this case occurred on July 5, 2009. On that Sunday morning, as on other weekend days, Cohen's office was open so that patients needing antibiotic infusion therapy could receive treatment. Cohen himself did not routinely attend to patients in his office on weekends. Rather, nurses administered the infusion therapy on his orders. Cohen did, however, make rounds at the local hospitals on weekends when he was on call, as he happened to be on this particular day. At some point during the morning, Cohen's wife called him on his cell phone and told him that the power was out at his office. Cohen does not clearly remember where he was when he received this call, but upon hearing that his office was without electricity, he stopped what he was doing and headed there to investigate. Meantime, a nurse's assistant named "M. L." was driving "Jane Doe," an elderly patient of Cohen's, to the doctor's office for infusion therapy. M. L. worked for a nurse registry that provided licensed caregivers on a contractual basis to persons needing assistance, such as Jane Doe. M. L. had not met Jane Doe before that morning (and, it turned out, would not see her again after July 5, 2009). M. L.'s job that day was to help Jane Doe get dressed, take her to the doctor's office, bring her back home, prepare a meal or snack for her, provide physical assistance as needed to allow Jane Doe to complete her daily activities, and generally watch out for the patient's safety. M. L. had not been informed of Jane Doe's medical condition and was not authorized to make medical decisions on Jane Doe's behalf. She neither had nor needed access to Jane Doe's medical records. Cohen arrived at his office, coincidentally, at about the same time as M. L. and Jane Doe. All three were outside, walking towards the entrance to the building, when an electrical transformer exploded overhead, making a loud noise. This startling event unsettled M. L. Once inside, Jane Doe was taken back for treatment. M. L. remained in the front reception area to wait for Jane Doe to return. Cohen soon entered this front room as well, to wait for the arrival of a crew from the electric company, which, he had been told, was on its way to fix the problem with the transformer. As they waited together, M. L. deduced that Cohen was a doctor from the fact that others were addressing him by that title. In time, Cohen took a seat next to M. L., and the two struck up a conversation. M. L.'s primary language is Haitian Creole, and she has a limited command of English. Cohen's native tongue is Spanish, but he is fluent in English. The two communicated in English. M. L. told Cohen that the explosion earlier had made her nervous. She also mentioned to him that she needed medicine to control her blood pressure, which she had forgotten to take that morning. Cohen offered to take M. L.'s blood pressure, and she agreed to let him do so. To accomplish this, Cohen led M. L. out of the reception area and into a hallway leading to the examination rooms. While M. L. sat on a stool in the hallway, Cohen took her blood pressure, which was elevated. Cohen informed M. L. that her blood pressure was high. In the course of their conversation, M. L. made Cohen aware that she would be off duty that afternoon. Cohen needed to complete his rounds at the hospitals, but he, too, would be free later in the day. Cohen invited M. L. to return to his office, alone, at 4:00 p.m. so that he could recheck her blood pressure.1 Cohen knew that no one else would be in the office at that time. M. L. accepted the doctor's invitation. Cohen and M. L. then went their separate ways. Cohen remained at the office for a while, until the electricity came back on, after which he left to complete his rounds. M. L. took Jane Doe home and finished her shift. The two met again that afternoon, as planned, at Cohen's office around 4:00 p.m. Once inside the office, where the two were alone, Cohen took M. L.'s blood pressure. This time, the numbers were normal, and Cohen so informed M. L. M. L. stood up to shake Cohen's hand, thank him, and say goodbye. Suddenly, Cohen pulled M. L. into an embrace, which she did not welcome. Cohen continued to force himself upon M. L., pinning her against the wall. He kissed her, sucked her breasts, and exposed his penis, demanding that she "kiss" it. All of this was against M. L.'s will.2 M. L. managed to break free, and she fled Cohen's office.3 Cohen chased after her. They got in their respective cars and drove away, M. L. heading home, Cohen following her in hot pursuit.4 When she arrived at her house, Cohen pulled up behind her. M. L. went inside, and Cohen left without further incident. Ultimate Factual Determinations The evidence is insufficient to establish, clearly and convincingly, that M. L. was either a "guardian" or "representative" of Jane Doe as those terms are used in Section 456.063(1), Florida Statutes, which proscribes "[s]exual misconduct in the practice of a health care profession." Even if M. L. were in fact Jane Doe's proxy, however, the evidence is insufficient to establish that Cohen had a professional relationship with M. L. qua Jane Doe's proxy. To the contrary, the evidence clearly and convincingly proves that the relevant professional relationship was that which existed between Cohen and M. L. in her own right; that is, in all of her relevant dealings with Cohen, M. L. acted exclusively in her personal capacity and on her own behalf, no one else's. Thus, Cohen is not guilty of engaging in sexual misconduct with a patient's guardian or representative. Cohen provided medical attention to M. L. on two separate occasions while acting in his professional capacity as a physician. On both occasions, Cohen was in his office, a place where his authority as a doctor is greatest. Moreover, because Cohen was in his office, surrounded by the tools of his trade, M. L. reasonably could have expected that the doctor would do more than simply take her blood pressure if, in his professional judgment based on her blood pressure or other reasons, he determined that she needed additional treatment. Such an expectation was especially justified in this instance because Cohen knew that M. L. suffered from hypertension when he invited her to return to his office for the purpose of rechecking her blood pressure, which was elevated that morning because (as Cohen also knew) M. L. had forgotten to take her medicine and had been startled by an explosion. In this context, M. L. was reasonably entitled to place her trust and confidence in Cohen, and to rely upon his special expertise and judgment as a physician in determining whether she was alright. As it happened, Cohen determined, after rechecking M. L.'s blood pressure, that further medical intervention was unnecessary. This was, in fact, a professional judgment upon which M. L. reasonably could (and apparently did) rely. A doctor's decision that all is well, even if based on little more than a routine procedure such as a blood pressure test, is an exercise of professional judgment, no less than if the doctor concludes that something is amiss and orders additional tests or treatment. It was this exercise of professional judgment that distinguished Cohen's taking of M. L.'s blood pressure from, e.g., M. L.'s performing a self-test at home or in a drugstore. The evidence establishes, clearly and convincingly, that, although the physician-patient relationship was casual or informal in nature, M. L. was nevertheless a patient of Cohen's for purposes of the statutes which prohibit a doctor from engaging in sexual activity with a patient. It is therefore determined, as a matter of ultimate fact, that Cohen is guilty of engaging in sexual misconduct with a patient, which is a disciplinable offense pursuant to Sections 456.072(1)(v) and 458.331(1)(j), (nn), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Cohen guilty of committing a single act of sexual misconduct with a patient, in violation of Section 458.329, Florida Statutes. Because this is Cohen's first such offense, it is further RECOMMENDED that the Board of Medicine: (a) suspend Cohen's medical license for one year, to be followed by both (i) a period of two years' probation, one condition of which should be the completion of five hours of continuing medical education in risk management, and (ii) a reprimand against Cohen's license; (b) require that Cohen complete 100 hours of community service; and (c) impose an administrative fine of $5,000.00. DONE AND ENTERED this 14th day of September, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2010.
The Issue Whether Respondent violated Sections 458.331(1)(g), (j), (m), (q), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of medicine pursuant to Section 20.20 and Chapters 455 and 458, Florida Statutes. Respondent, Ronald L. Cohen, M.D. (Dr. Cohen), is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0024014. Dr. Cohen's last known address is 7800 West Oakland Park Boulevard, Suite 216, Fort Lauderdale, Florida. Dr. Cohen's area of practice is urology, and he is board certified. He has been practicing in Fort Lauderdale since 1976. During his years of practice, he has enjoyed an excellent professional reputation. Between on or about July 2, 1990, through on or about May 16, 1992, Dr. Cohen treated Patient R.G. for various complaints. On or about July 2, 1990, Patient R.G., a thirty-four year-old female with a history of chemical dependency from the age of twelve for which she first underwent treatment in or about 1986, presented to Dr. Cohen with voiding complaints including post void dysuria, frequency, urgency, and urgency incontinence. However, such information about chemical dependency was unknown to Dr. Cohen until a subsequent time. Patient R.G. did not reveal to Dr. Cohen either her history of chemical dependency or treatment of that dependency. Dr. Cohen performed a physical examination of Patient R.G. wherein Dr. Cohen dilated Patient R.G.'s uretha. Dr. Cohen noted that Patient R.G.'s urinalysis was entirely within normal limits. Dr. Cohen then diagnosed Patient R.G. with urethritis, urthrel stenosis, and trigonitis. Dr. Cohen prescribed Patient R.G. a three-day supply of Noroxin and pyridium to improve Patient R.G.'s symptoms. Noroxin is an antibacterial agent indicated for the treatment of adults with complicated urinary tract infections. Pyridium is an analgesic agent indicated for the symptomatic relief of pain, burning, urgency frequency and other discomfort arising from irritation of the lower urinary tract mucosa. Patient R.G.'s symptoms persisted. On or about July 13, 1990, Patient R.G. underwent a cystoscopy, urethal dilation, and hydraulic bladder distention by Dr. Cohen at Outpatient Surgical Services in order to rule out interstitial cystitis. Dr. Cohen's postoperative impressions were as follows: Interstitial cystitis (inflammatory lesion of the bladder) and urethral stenosis. On or about July 17, 1990, Patient R.G. presented to Dr. Cohen's office in severe pain secondary to the cystoscopy and bladder distention. At that time, Patient R.G. complained of feeling bloated suprapubically. Dr. Cohen instilled dimethyl sulfoxide to relieve Patient R.G.'s pain. Patient R.G.'s symptoms were subsequently temporarily resolved. On or about January 19, 1991, Patient R.G. next presented to Dr. Cohen with complaints of a recurrent episode of urinary frequency and burning on the previous day. Shortly thereafter, in early 1991, Dr. Cohen asked Patient R.G. to go to lunch. Dr. Cohen and Patient R.G. subsequently began a social relationship which included sexual intercourse. At the time that Dr. Cohen initiated the relationship with Patient R.G. he was aware of the prohibitions against such conduct, knew he had choices available to him, but declined to exercise professional self-discipline. Dr. Cohen did exercise influence as Patient R.G.'s physician for the purpose of engaging in sexual relations. Dr. Cohen has never had a sexual relationship with any other patient. On or about April 8, 1991, Dr. Cohen wrote a prescription for thirty units of Valium 10 mg. for Patient R.G. who had at that time complained to Dr. Cohen of anxiety due to marital difficulties. Valium is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Valium is indicated for the management of anxiety disorders or for the short-term relief of symptoms of anxiety. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Valium prescription and therefore the records fail to justify his prescription of Valium, a controlled substance indicated for the treatment of anxiety, to Patient R.G. On May 16, 1992, Dr. Cohen wrote a prescription for thirty units of Prozac 20 mg. Prozac is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains Fluoxetine Hydrochloride which is not a controlled substance. Prozac is indicated for the treatment of depression. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Prozac prescription and therefore the records fail to justify his prescription of Prozac. Dr. Cohen inappropriately prescribed Prozac, a legend drug indicated for the treatment of depression. Prozac, however, was not indicated in the treatment of Patient R.G.'s urologic condition, interstitial cystitis. Dr. Cohen admitted to having prescribed Prozac to Patient R.G. as a favor so that Patient R.G. did not have to see her psychologist for said prescription. Dr. Cohen admitted to having a sexual relationship with Patient R.G. Dr. Cohen, by virtue of his sexual relationship with Patient R.G. and his inappropriate prescribing of Prozac for Patient R. G., failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. Dr. Cohen underwent an evaluation by Thomas J. Goldschmidt, M.D., a specialist in neurology and psychiatry, in conjunction with Richard Westberry, Ph.D., a licensed psychologist. Dr. Goldschmidt issued a report on their evaluation in which he stated: We see no evidence of any exploitative tendency regarding Dr. [Cohen] in his relationship with this patient. There is no evidence of any sexual addiction component. And we do not feel that his is behavior that is likely to reoccur or compromise his ability to practice urology. We see this as an isolated incident that Dr. [Cohen] approached in a very naive fashion and was primarily orchestrated by the dynamics of a sexually provocative, aggressive female who proposed a sexual act that was nonthreating (sic) to the patient while simultaneously providing ego gratification for longstanding, underlying emotional conflicts dealing with castration fears and anxiety. Dr. Cohen voluntarily entered into a contract with the Physician's Recovery Network to assist him in dealing with his despondency and depression. Dr. Cohen continues to see Dr. Westberry on a weekly basis for his despondency. Dr. Cohen has never had any disciplinary action taken against his license nor has he been dismissed from any position at a hospital at which he had staff privileges. Dr. Cohen has staff privileges at four hospitals. Dr. Cohen was Vice Chief of Staff at one of the hospitals until he voluntarily resigned that position when this case surfaced in order to avoid embarrassment to the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Cohen violated Sections 458.331(1)(g), (j), (m), (q) and (t) as set forth in Counts 1-5 in the Administrative Complaint, and imposing a $5,000 fine for the violations of Sections 458.331(1)(g) and (j), Florida Statutes and a $5,000 fine for violations of Sections 458.331(1)(m), (q), and (t), Florida Statues, for a total of $10,000, and placing Dr. Cohen on probation for two years under terms and conditions to be set by the Board of Medicine. DONE AND ENTERED this 15th day of March, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3274 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted. Paragraphs 10-11: Accepted in substance. Paragraphs 12-14: Accepted. Paragraph 15: Rejected as irrelevant because the administrative complaint did not state such a violationas it related to the valium but only as to the Prozac. The violation relating to valium was the record keeping. Paragraphs 16-19: Accepted. Paragraph 20: Accepted except as to the valium. The administrative compliant did not allege such a violationas it related to valium. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: Accepted as to his professional reputation. The remainder is rejected as unnecessary. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: The first sentence is accepted. The remainder is unnecessary. Paragraphs 7-13: Accepted. Paragraph 14: Rejected as subordinate to the facts found. Paragraph 15: Rejected as not supported by the greater weight of the evidence. Dr. Cohen is the party whoinitiated the social relationship with R.G. when heasked her out to lunch. He was physically attracted tothe patient and that is why he asked her out. Paragraph 16: Accepted. Paragraph 17: The first sentence is accepted. The last sentence is rejected as subordinate to the facts found because Dr. Cohen did prescribe medication forR.G. which had nothing to do with the complaints forwhich she was seeing Dr. Cohen. Paragraph 18: Rejected as subordinate to the facts found. See paragraph 17. Paragraphs 19-22: Rejected as subordinate to the facts found. Paragraph 23: The first and second sentences are rejected as subordinate to the facts found. The thirdsentence is accepted to the extent that he has enteredcounseling. Paragraphs 24: Accepted to the extent that he is in counseling and that such a relationship will not likelyoccur again. Paragraph 25: Accepted in substance. Paragraph 26: The first two sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 27: Accepted in substance that such a relationship is unlikely to happen in the future. Rejected to the extent that it implies that R.G. gavefree, full informed consent to the sexual activity. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts found. Paragraphs 31-34: Accepted in substance. Paragraph 35: Rejected as unnecessary. Paragraphs 36-39: Accepted in substance. COPIES FURNISHED: Donald G. Korman, Esquire Korman, Schorr and Wagenheim The Dart Building 2101 North Andrews Avenue, Suite 400 Ft. Lauderdale, Florida 33311 Paul Watson Lambert, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-6506 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Findings Of Fact The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m. The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004. Julia Woods was removed by the Nursing Director, Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she specifically instructed Ms. Wood to improve the quality of patient care. Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit. The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice. The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed. The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient. Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care. The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit. Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient. On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated. The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner. Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner. Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective Action in a 12-month period would result in termination. Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season. The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection. The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin. The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient. The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.” Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change. A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences. Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005. Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action. Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand. In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose. The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees. The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in Ms. Woods's office when discussing the Petitioner. The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American. The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m. Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all. The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director. Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and persuasiveness.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010. COPIES FURNISHED: Nancy Toman Baldwin, Esquire Law offices of Nancy Toman Baldwin 309 North East First Street Gainesville, Florida 32601 Marquis W. Heilig, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
