Findings Of Fact Based upon the stipulation filed in this cause, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent, Randall E. Pitone, M.D., is a medical doctor licensed (license number ME 0029098) by the State of Florida since 1976. Respondent is a diplomate in psychiatry having received certification from the American Board of Psychiatry and Neurology. At all times material to the allegations of this case, Respondent was in the practice of psychiatry in the State of Florida. Respondent has been affiliated with or authorized to practice in a number of hospitals in the Pinellas County area. He enjoys a good reputation among the community of practicing psychiatrists and has covered for several of them during the course of his practice. The Respondent became Patient 1's treating psychiatrist in 1982 when the patient was almost 18 years of age. Patient 1 has a borderline personality disorder and other problems for which she required treatment. In order to more effectively provide treatment for borderline patients, Respondent attended at least two courses related to borderline personality disorder during the early 1980s. From September, 1982 through May, 1988, Respondent treated Patient 1 with individual psychotherapy. During this time, Patient 1 was hospitalized on several occasions and Respondent counseled with her within the hospital setting and at his office. Borderline patients are typically very needy, seductive, and manipulative in their approach to others. During her period of treatment Patient 1 frequently attempted to initiate a romantic relationship with Respondent who diplomatically refused her advances. On each of these occasions, Respondent explained to Patient 1 that he could not have a romantic relationship and continue therapy. Also during this period, Respondent was married and devoted to his family. In May, 1988, Respondent and Patient 1 ended their formal physician- patient relationship. Patient 1 was not sincerely pursuing therapy. Additionally, she had a new boyfriend with whom she seemed happy. Respondent encouraged her to seek therapy but she mistakenly believed that she did not need it. Although she would periodically drop by to visit with Respondent, she did not make appointments for therapy. Nor did she obtain therapy from another psychiatrist despite Respondent's encouragement for her to do so. Respondent's wife left him sometime in 1988. Her departure was very difficult for Respondent. The couple divorced in June, 1988, and Respondent's former wife remarried shortly thereafter and moved to Georgia. Respondent's children resided with him until sometime in 1989 when they moved to their mother's home. Subsequently, Respondent allowed Patient 1 to move into his home. She resided with him from June, 1989 until April, 1990. Throughout this period of cohabitation, Respondent included Patient 1 in his family activities. She went to his brother's home with him for Christmas and went on a cruise to Jamaica with his relatives. Respondent did not hide their relationship from his family or friends. During this period Respondent and Patient 1 engaged in sexual intercourse. Patient 1 has been hospitalized on several occasions since 1982. During one such hospitalization, on or about October 30, 1988 (after formal therapy had ended), Dr. Helm consulted with the Respondent regarding Patient 1's suspected drug abuse. Patient 1 has a serious addiction to alcohol, cocaine, and crack cocaine. This addiction dates at least as far back as the summer of 1989, and perhaps earlier. Respondent knew of Patient 1's addiction to cocaine and of her abuse of other substances. Respondent prescribed medications for Patient 1 in a misguided effort to wean her from street drugs. Whenever Respondent refused to give Patient 1 prescriptions, she would become outraged and destructive. On one such occasion, Patient 1 exited the car in which the couple was travelling and bolted in front of an oncoming truck. As a result Patient 1 was hospitalized with a broken pelvis. Between May, 1988, and March, 1990, Respondent wrote or authorized the prescriptions listed in attachment A for Patient 1. These prescriptions were given to Patient 1 despite the fact that she was no longer formally receiving psychotherapy from Respondent. Moreover, many of the prescriptions issued are not of the type generally associated with the treatment of psychiatric patients since they are more commonly associated with pain relief. Amitriptyline is a legend drug. Dalmane is a brand name of flurazepam, a legend drug and controlled substance. Valium is a brand name of diazepam, a legend drug and controlled substance. Xanax is a brand name of alprazolam, a legend drug and controlled substance. Darvocet is a brand name of a compound containing propoxyphene, a legend drug and controlled substance. Tylenol #3 and Tylenol #2 are brand names of acetaminophen or apap with codeine, legend drugs and controlled substances. Percodan is a brand name of oxycodone with aspirin, a legend drug and controlled substance. Percocet is a brand name of oxycodone with acetaminophen or apap, a legend drug and controlled substance. Legend drugs are required by federal or state law to be dispensed only on a prescription. Respondent inappropriately prescribed legend drugs/controlled substances to Patient 1. Respondent prescribed drugs for Patient 1 after they were living together and engaging in sexual relations. The types and quantities of prescriptions written by Respondent for Patient 1 were not justified by examinations and records maintained by the Respondent, were not issued in the course of medical practice, and were clearly excessive. By prescribing the drugs listed in attachment A, Respondent failed to provide Patient 1 with that level of care, skill and treatment, which a reasonably prudent similar physician recognizes as acceptable under the conditions and circumstances of this case. Respondent also failed to seek consultation in connection with his concerns over Patient 1. Instead, Respondent set himself up as her sole provider and savior. This action was medically inappropriate and further evidences Respondent's loss of objectivity in this instance. In effect, Respondent became a patient in need of treatment as a result of his erroneous and misguided efforts to assist Patient 1. On April 11, 1990, an order of emergency restriction of Respondent's license was issued by Larry Gonzalez, acting as Secretary of the Department. That order placed specific restrictions on the Respondent's license which include: -the prescription of controlled substances utilizing sequentially numbered triplicate prescriptions; -the review of each prescription by a supervisory physician; -the prohibition of providing medical services to Patient 1; and -the submission of monthly reports by a monitoring physician which includes specific information regarding Respondent's practice, any problems, a review of prescriptions and patient records. To date, Respondent has complied with the restrictions placed on his license. Additionally, Respondent has sought and obtained psychiatric counseling in connection with his errors in thinking related to his relationship with Patient 1. Respondent developed a rescue fantasy in which he perceived that he alone could assist Patient 1 recover from her illnesses. This was not a medically sound approach to the dilemma within which Respondent became embroiled. As Respondent fell in love with Patient 1, he lost his professional perspective and undertook this ill-fated rescue of her. An examination of Respondent's medical records does not suggest that the activities which gave rise to the allegations of this case have occurred regarding other patients. From the circumstances of this case, it is unlikely another incident or series of incidents of this type will recur. Sexual activity between a psychiatrist and his patient has detrimental effects on the patient. In this instance, that conduct had detrimental effects on both the Respondent and Patient 1. Since Respondent fell prey to Patient 1's manipulative nature, his judgment became impaired and she was able to orchestrate an inappropriate response from Respondent. It cannot be found, however, that Respondent used their relationship to induce Patient 1 to engage in sexual activity.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(m), (q), and (t), Florida Statutes, and imposing the following penalties: suspension of the Respondent's license for a period of one year during which time the Respondent shall continue counseling, followed by a two year period of probation under the terms set forth in the emergency order issued April 11, 1990, together with an administrative fine in the amount of $5,000.00. DONE and ENTERED this 14 day of November, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of November, 1990. APPENDIX TO CASE NO. 90-3276 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 20 are accepted. With regard to paragraph 21 it is accepted that Respondent provided the prescriptions as described, however, he had formally ended psychotherapy of Patient 1 in May, 1988. It was inappropriate for him to issue the prescriptions. Paragraphs 22A. and 22C. are accepted. Paragraph 22D. is rejected to the extent that it finds Respondent did not maintain appropriate records, otherwise, rejected as contrary to the weight of the credible evidence. Note: there is no paragraph 22B. Paragraph 23 is accepted. Paragraph 24A. is accepted. Paragraphs 24B. and 24C. are rejected as contrary to the weight of credible evidence. With regard to paragraph 25 it is accepted that Respondent prescribed substances for Patient 1 inappropriately and excessively, otherwise the paragraph is rejected as contrary to the weight of the evidence or a conclusion of law. Paragraphs 26, 27, 30 and 31 (because it allowed her to manipulate Respondent into prescribing inappropriately--he should have been the physician not a co-patient) are accepted. Paragraphs 28 and 29 are rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. To the extent addressed in findings paragraphs 3 through 7, Respondent's paragraphs 4 through 9 are accepted; otherwise rejected as irrelevant or a recitation of testimony. With the exception of the last sentence, paragraph 10 is accepted. The last sentence is rejected as speculative or conjecture--it is accepted that Respondent was in a stress-filled, emotional situation. Paragraphs 11 through 14 are accepted. Paragraph 15 is rejected as irrelevant. Paragraph 16 is accepted but is irrelevant. Paragraph 17 is accepted. Paragraphs 18 through 19 are accepted. Paragraphs 20 through 23 are rejected as recitation of testimony but see findings of fact paragraphs 27, 28, and 29. Paragraphs 24 through 28 are rejected as recitation of testimony. With regard to paragraph 29 it is accepted that the Respondent does not pose a threat to the public under his current circumstances. Otherwise, paragraph 29 is rejected as recitation of testimony or irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as recitation of testimony. Paragraph 32 is accepted. Paragraph 33 is accepted. ATTACHMENT A Date Drug Prescribed 5/14/88 Dalmane 6/02/88 Valium 7/15/88 Percodan 7/20/88 Percodan 7/27/88 Xanax 7/27/88 Percodan 8/12/88 Percodan 9/06/88 Percodan 9/13/88 Zantac 9/23/88 Percodan 10/7/88 Darvocet N-100 10/29/88 Xanax 11/18/88 Percodan 01/6/89 Xanax 1 mg 01/09/89 Xanax 1 mg 01/10/89 Percodan 01/11/89 Xanax 01/16/89 Xanax 01/18/89 Xanax 01/21/89 Xanax 01/20/89 Tylenol 3 01/24/89 Tylenol 3 01/25/89 Tylenol 3 01/26/89 Xanax 01/31/89 Xanax 02/02/89 Percodan 02/04/89 Xanax 1mg 02/04/89 Percodan 02/04/89 Xanax 1mg 02/09/89 Percodan 02/10/89 Xanax 02/10/89 Percodan 03/03/89 Xanax 03/03/89 Percodan 03/13/89 Percodan 03/14/89 Xanax 1mg 03/17/89 Percodan 03/20/89 Xanax 03/24/89 Xanax 03/24/89 Percodan 03/27/89 Percodan 03/27/89 Xanax 03/29/89 Percodan 03/31/89 Percodan 04/07/89 Xanax 1mg 04/10/89 Percocet 5mg 04/11/89 Percodan 04/21/89 Percodan 04/24/89 Percodan 04/25/89 Percodan 04/25/89 Xanax 04/26/89 Percodan 04/28/89 Percodan 04/28/89 Xanax 04/29/89 Percodan 05/01/89 Xanax 05/02/89 Percodan 05/04/89 Percodan 05/05/89 Percodan 05/09/89 Xanax 05/11/89 Xanax 05/14/89 Xanax 1 mg 05/18/89 Xanax 1 mg 05/20/89 Xanax 1 mg 06/06/89 Xanax 1 mg 06/08/89 Percodan 06/09/89 Xanax 1 mg 06/09/89 Percodan 06/14/89 Xanax 1 mg 06/14/89 Percodan 06/16/89 Xanax 1 mg 06/23/89 Xanax 1mg 06/24/89 Percodan 06/26/89 Percodan 07/01/89 Xanax 07/07/89 Xanax 1 mg 07/07/89 Percodan 07/10/89 Percodan 07/15/89 Percodan 07/17/89 Percodan 07/20/89 Percodan 07/21/89 Valium 10 mg 07/21/89 Percodan 07/28/89 Percodan 07/30/89 Valium 07/31/89 Percodan 08/02/89 Percodan 08/04/89 Percodan 08/05/89 Valium 10 mg 08/07/89 Valium 10 mg 08/07/89 Percodan 08/09/89 Percodan 08/20/89 Valium 10 mg 09/01/89 Percodan 09/04/89 Valium 09/06/89 Percodan 09/19/89 Percodan 09/22/89 Valium 09/22/89 Percodan 09/28/89 Percodan 10/01/89 Percodan 10/02/89 Percodan 10/02/89 Valium 10 mg 10/04/89 Valium 10 mg 10/04/89 Percodan 10/05/89 Xanax 1 mg 10/06/89 Percodan 10/13/89 Darvocet-N. 100 10/13/89 Valium 10/13/89 Tylenol #2 10/17/89 Tylenol #2 10/19/89 Valium 5 mg 10/20/89 Tylenol #3 10/24/89 Tylenol #3 10/24/89 Valium 5 mg 10/25/89 Tylenol #3 10/26/89 Percocet 10/30/89 Percocet 10/30/89 Tylenol #4 10/30/89 Valium 10 mg 11/03/89 Percodan 11/17/89 Percodan 11/17/89 Valium 10 mg 11/24/89 Valium 10 mg 11/24/89 Percocet 11/27/89 Percocet 11/29/89 Percocet 01/02/90 Valium 10 mg 01/02/90 Percodan 01/12/90 Tylenol #3 01/12/90 Valium 10 mg 01/13/90 Xanax 1 mg 01/17/90 Tylenol #3 02/04/90 Xanax 1 mg 02/17/90 Percodan 02/20/90 Percodan 02/28/90 Percodan 03/10/90 Percodan 03/16/90 Percodan 03/17/90 Percodan COPIES FURNISHED: Bruce D. Lamb Chief Trial Attorney Department of Professional Regulation 730 Sterling Street, Ste. 201 Tampa, Florida 33609 Grover C. Freeman FREEMAN, LOPEZ & KELLY, P.A. 4600 West Cypress, Ste. 500 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case, as set forth in the Prehearing Stipulation, are as follows: Whether Respondent was terminated from the State Medicaid Program; [Case No. 14-2488, Count I] Whether Respondent failed to update his practitioner profile within fifteen days of the filing of the order terminating him from the State Medicaid Program; [Case No. 14-2488, Count II] Whether Respondent exercised influence within the patient-physician relationship with T.J.[1/] for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with T.J.; [Case No. 14-1342, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with M.B. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with M.B.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with C.J. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with C.J.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with D.K. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with D.K.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with A.H. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with A.H.; [Case No. 14-1343, Counts I & II] and Whether Respondent exercised influence within the patient-physician relationship with S.D. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with S.D. [Case No. 14-1343, Counts I & II]
Findings Of Fact Petitioner, Department of Health, Board of Medicine (the “Department”) is the State agency responsible for licensing and monitoring physicians in the State of Florida. The Department regulates the practice of medicine in accordance with section 20.43 and chapters 456 and 458, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification. Respondent is a licensed Florida physician, certified in the area of pain management, holding license number ME 97134. At all times relevant hereto, Respondent was practicing medicine at one of two locations: the Back Authority for Contemporary Knowledge, (a pain management clinic known as the “Back Center” located in Melbourne, Florida); and Advantacare (in its Altamonte Springs and Daytona Beach offices). Respondent was employed at the Back Center from January 2008 through September 2011, and at Advantacare from March 2012 through April 2013. Respondent provided pain management services for numerous patients during his tenure at each of the clinics. While at the Back Center, he saw 50 to 60 patients per day in an 8-hour workday, doing about 15 medication injections per day. At Advantacare he was seeing about 30 patients per day. By all accounts, Respondent is a skilled and proficient pain management physician. At Advantacare, Respondent would see patients for regular office visits at the Altamonte Springs office on Monday, Tuesday, Thursday, and Friday; Wednesday would be set aside for administering injections under a fluoroscope, described as sort of a C-shaped X-ray machine, performed at the Daytona Beach office. None of the sexual behavior alleged in the Administrative Complaints occurred during injections performed under fluoroscope. A general policy existed at the Back Center that required physicians to have another facility employee (medical technician, nurse, other) present in an examination room when a physician was providing care to a patient not of the same gender as the doctor. This “chaperone” policy is standard in the health care industry. There is no credible evidence that Respondent was ever shown the Back Center’s policy in writing, although it is probable the policy was accessible on the website of the entity (Osler Corporation) that owned the Back Center for a period of time. As a practicing physician, Respondent was also presumed to be aware of and to follow the chaperone policy and he admitted knowing about the policy in general. Respondent was, however, verbally apprised of the policy by his supervisor, Dr. Hynes, by the clinic operations manager, Mr. Pachkoski, and by the chief administrative officer, Cathy Bird. Respondent acknowledged that it was best to have another person in the examination room if he was providing treatment to a female patient. If no chaperone was available, it was his stated practice to keep the door open. Respondent did not feel like assistants were always available to chaperone, but neither his supervisor (Dr. Hynes) nor a co-physician (Dr. Zaidi) remembers Respondent complaining that staff was not available at the Back Center. The testimony of all six complainants in this case contradicts Respondent’s contention; each of them said they were treated by Respondent (alone) in a room with the door closed. When asked directly whether he ever treated female patients at the Back Center in a room with the door closed, Respondent admitted that it happened on occasion. The best and most persuasive evidence in this case is that a chaperone policy did exist and that Respondent did not follow the policy. Between September 2008 and January 2013, Respondent treated six female patients who are the subjects of the Department’s Administrative Complaint. Each of the patients is identified only by their initials in an attempt to maintain their confidentiality and privacy. The six patients will be addressed in chronological order based on the dates of their alleged mistreatment by Respondent. Patient S.D. Patient S.D. was a patient of Respondent between September and December 2008. S.D.’s status as a patient was stipulated to by the parties.2/ While she was Respondent’s patient, S.D. was also an employee of the Back Center. During the period of time Respondent was treating S.D., they engaged in a series of emails which could be construed as very sexual in nature. For example, on September 23, 2008, Respondent and S.D. had the following email exchange: S.D. – “You buying Dinner….Or am I your [f***ing] dinner????”Respondent – “What do you think? I want u as breakfast, lunch and dinner. My precious love.” S.D. – Ok so what am I going to eat LOL??? Let me guess a protein shake”Respondent – “If I shake it hard enough yes.” Then, on September 25, the two had this email exchange:Respondent – “NO I WANT U TO FEED ME!!! AND NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!! I’M UR MAN AND I SAY NO.”S.D. – “Then act like it and stop flirting with the [f***ing] skank!”Respondent – “WHY? GETTING JEALOUS SWEETHEART?”S.D. - “No I guess I have no reason to be.” Respondent – “EXACTLY, YOU HAD ME AT LUNCH AND LEFT TO GO TO WORK. SO YOU CAN’T SAY ANYTHING, PRECIOUS.” Respondent denies that the exchange of emails with S.D. suggests anything of a sexual nature. He said, e.g., that in his Iranian culture, talking about eating someone was tantamount to saying you cared deeply for them. Respondent’s denial of the sexual nature of the emails is not persuasive. S.D. did not testify at final hearing nor was her testimony preserved by way of a deposition transcript. The Department offered into evidence an exhibit comprised of various emails between S.D. and Respondent, two of which were discussed above. At least one co-worker, Lizamar Korfhage (a physician’s assistant at the Back Center), heard S.D. yell loudly in the office--as S.D. was being terminated from employment--that she (S.D.) and Respondent were having sexual relations. Cathy Bird, former chief administrative officer at the Back Center, had discussed the alleged affair with S.D. during several conversations before S.D.'s employment with the Back Center ended. Bird also talked with Respondent about the situation after S.D. was fired from the Back Center. Respondent was concerned that S.D. would tell Respondent’s wife about the affair and sought Bird’s guidance in the matter. Based upon the entirety of the clear and convincing evidence presented, Respondent was involved in a sexual relationship with S.D. at some point in time when S.D. was also a patient of the Back Center. Patient T.J. Patient T.J. was a 37-year-old patient when she saw Respondent at the Back Center on October 29, 2010. T.J. had seen Respondent professionally some 16 or so times previously. No inappropriate conduct had occurred on any of those visits. On the October 29 visit, T.J. was escorted into an examination room by a nurse as usual. Respondent came in and, after examining her, suggested that trigger point injections might help alleviate her pain, which she described as being a “2” on a scale of 1 to 10.3/ She agreed to the plan of treatment. Respondent had T.J. sit on an armless stool and lean her arms and head onto a desk. Respondent stood on her left side and began administering injections into her neck. As he leaned against her body, T.J. felt what she described as Respondent’s erect penis rubbing on her upper arm or shoulder. She felt like Respondent was intentionally rubbing her in what she later concluded to be a sexual manner. When he finished the injections, Respondent did not act any differently than usual. T.J. felt like something “weird” had just happened, but decided not to report it because she was not completely sure about her perceptions. Respondent, in contradiction to T.J.’s testimony, said he generally stayed four to five inches away from his patient when administering the injections, but would sometimes come into contact with them. T.J. returned for a follow up visit on November 24, 2010, receiving another injection by Respondent. She reported no misconduct by Respondent on that date. On December 23, 2010, T.J. returned to the Back Center for additional treatment. This time, her pain was radiating all the way down to her buttocks area and was described as a “3” out of 10. She was again escorted to an examination room to wait for Respondent. Respondent came in and closed the door, as was his usual practice during T.J.’s visits. After examining her, Respondent suggested injections for sacroiliac joint pain. T.J. was told to lie on the examination table on her left side. Respondent had T.J. lower her jeans to just below her knees. She had her left leg out straight and her right leg bent at the knee and across her left leg. Respondent then began to press his fingers on different parts of her inner thigh searching for the source of her pain. The pain was centered between her knee and buttocks area, and Respondent made an injection in that area. Respondent then had T.J. roll over to her right side as he pulled the table slightly away from the wall and placed himself between the wall and the table. Respondent began pushing on her inner thigh again, starting at her knee and moving upward toward her buttocks. As he did that, his tone of voice changed and he began panting. He continued to touch and probe her thighs as his hands went higher until he ultimately touched her vagina. T.J. immediately said, “That’s it” and quickly got off the examination table and pulled up her jeans. Respondent appeared sweaty and red-faced, looking to T.J. like a person who had just engaged in sex. T.J. then began to consider whether Respondent’s behavior during the October 29, 2010, visit had indeed been sexual in nature as well. She concluded that it was, and decided not to see Respondent for treatment in the future. She did not, however, report either of the incidents to the Back Center immediately. She ultimately did so, telling physician's assistant Korfhage about the incident some 10 months later. After seeing a report on television in 2013 that Respondent had been accused by another patient of sexual misconduct, she decided to make a report to the police about her own experiences with Respondent. When the police did not prosecute, she contacted an attorney in order to file a civil action against Respondent. T.J. appeared to be honest and forthright during her appearance at final hearing. Her testimony about her version of the events was credible, clear, and convincing. In his testimony at final hearing, Respondent did not specifically refute T.J.’s testimony so much as he explained how his normal process would not allow for the kind of touching T.J. alleged to have occurred. Respondent did not specifically or directly deny touching patient T.J.’s vagina, saying only that there would be no reason to do so. Patient D.K. (also known as D.W.) D.K. was a regular patient of Respondent and the Back Center. She had an appointment on January 13, 2011, to see Respondent for pain she was experiencing in her lower back and sides. On previous visits to the Back Center, Respondent had done localized injections to help D.K. deal with the pain. On those visits, she had simply rolled her pants down below her waist and leaned against the examination table in order for Respondent to do the injections. On the January 13 visit, she was told to lie on the table and pull her jeans down to her knees while Respondent went to prepare the medications. Respondent returned, closing the door as he came into the room. Respondent began injecting medications into her back and both sides. He then moved lower and administered injections into her thighs although she had not complained about any pain in that area. Respondent then moved her jeans down to her ankles and began administering injections into her calves. While he was injecting her, she felt him rubbing his erect penis against her thighs and heard his breathing get heavier. She could also feel Respondent lean closer to her and felt his breath on her thighs as he injected her calves. After the injections were complete, D.K. said Respondent was sweating, flushed, and “looked like my husband after we’ve had intercourse.” D.K. left the office and returned to her car. She immediately began to mentally process what had occurred to her, but did not immediately tell anyone at the Back Center. She was shocked and upset by the event but waited a few days before telling her husband what had happened. She then reported the events to someone at the Back Center. The Back Center asked her to come in so she could discuss the situation with Dr. Hynes, medical director of the Back Center. Later, D.K. made a complaint to local law enforcement about the incident. D.K. has also contacted an attorney to look into filing a civil lawsuit against Respondent. In response to the complaint by D.K., Dr. Hynes mandated that Respondent have a medical assistant with him during any contact with female patients. Despite the prohibition, Respondent continued to see female patients in an examination room without others present. He was confronted several times by the site operations manager about this violation, but Respondent did not change his behavior. D.K. was a credible witness. She provided a clear and unequivocal description of what transpired during her visit to the Back Center on January 13, 2011. Patient C.J. Patient C.J. presented to the Back Center experiencing pain as a result of shrapnel wounds received while she was serving in the U.S. Army in Afghanistan. C.J. did not testify at final hearing so her physical demeanor could not be assessed. Her deposition transcript was admitted into evidence over objection. In May 2011, C.J. was referred to the Back Center by her treating physician at Patrick Air Force Base. She took the referral, called the Back Center, and was assigned to Respondent for pain management services. C.J. went to the Back Center on May 4, 2011. She was experiencing significant pain and was physically uncomfortable. C.J. was processed in by a receptionist and then led to an examination room by a female employee. The employee took C.J.’s blood pressure, gathered some personal information, and left the room. On that date, C.J. was wearing jeans, a blouse, and open- toed shoes. She had on “full underwear” that day. Respondent came into the room and examined C.J. as she sat on the examining table. He advised C.J. that an injection might benefit her. As C.J. remembered it, the injection was to be in the side of her neck, and then in her back or hip. Respondent left the room to obtain the medications as C.J. waited. Upon his return to the room, Respondent injected Depo- Medrol 40 mg, Toradol 30 mg, Lidocaine 2% 0.5 mL, and Marcaine 0.5 mL into the left side of her neck. After the initial injection, Respondent left the room while the medication took effect. C.J. began to feel very relaxed and sleepy. Respondent recollects that C.J. complained of feeling light-headed, but does not believe any medication he injected would have caused that to happen. Respondent later returned to the room and prepared to give C.J. another injection into her hip area. She sat up on the table as Respondent pulled one end of the table slightly away from the wall.4/ After moving the table, Respondent had C.J. lie down on her side, lift her blouse, and unbuckle her jeans. She then slid her jeans and underwear down past her hips as directed. At that point, Respondent began injecting a solution into C.J.’s hip. As the injection was proceeding, she felt Respondent slide his hand over her hip and “in my groin area.” While doing that, Respondent’s crotch was pressed against C.J.’s buttocks. C.J. felt what she believed to be Respondent’s erect penis pushing against her buttocks as he administered the injection. After the injection was completed, Respondent came around from behind the table and told C.J. she would need to come see him again in a few weeks. C.J. got up from the table and began to realize that “something was not right” about the treatment she had just received. When C.J. went to the front desk to check out, she asked a nurse to identify the medications which had been injected but was unable to get that information. C.J. then left the Back Center and immediately called her nurse case manager at Patrick Air Force Base to report what had occurred. Her nurse advised C.J. to call 911 to report the incident; C.J. did so as she walked out to her car in the parking lot. A policeman arrived some 20 minutes later and took her statement. The officer then went inside to talk to Respondent. He said Respondent appeared to be surprised and shocked by C.J.’s allegation. The police decided not to file any charges against Respondent based on C.J.’s complaint. The reporting police officer (Middendorf) seemed to question C.J.’s veracity or truthfulness on the day of the incident. He said C.J. was upset and seemed lethargic, except when she was talking on the telephone to “one of her superiors.” According to Middendorf, C.J. acted consistent with someone who may be under the influence of drugs. He did acknowledge that C.J. had just come out of a pain management clinic. Middendorf also felt C.J. was either confused or not telling the truth concerning where Respondent had allegedly touched her. C.J., who was obviously distraught at the time, indicated both her pubic area and her outer thigh when she told Middendorf that Respondent had touched her “groin.” Middendorf challenged her about that and C.J. became defensive and argumentative. He did not provide any credible testimony as to why he believed she might be lying to him. His statement that C.J.’s voice changed when she was talking to her office on the phone is not conclusive evidence that she was not telling him the truth. C.J. never returned to the Back Center. She obtained pain management treatment elsewhere. Inasmuch as C.J.’s demeanor could not be judged because she did not appear in person, her testimony must be considered using other factors. In this case, the testimony was very similar to the facts described by other patients of Respondent concerning their treatment by him. The events as described by C.J. were believable and convincing, especially when compared to the allegations by other alleged victims. Neither C.J. nor any of the other alleged victims/complainants has talked to other alleged victims about their experiences, so there does not appear to be any collusion between the victims. Patient M.B. Patient M.B. was already a regular patient at the Back Center when she first saw Respondent on July 7, 2011. Respondent’s notes in M.B.’s chart indicate the patient was presenting for “initial evaluation” that day, but that was not correct; she had already been seen several times by other physicians at the Back Center. M.B. had chronic lumbalgia (low back pain) and lower extremity dysesthesia (a burning sensation) which was increasing progressively. Respondent examined M.B., discussed his findings, and scheduled a follow-up appointment for August 2, 2011, at which time he gave her an injection of 1% Xylocaine with approximately 30 ml of Lidocaine 1% on both of her side hips. He also injected a block with a solution containing 2 ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo- Medrol 80 mg into M.B.’s joints. M.B. reported no suspicious or untoward behavior by Respondent during the July 7 and August 2 appointments. On August 29, 2011, M.B. returned to see Respondent. She presented with pain in her hips and left side. Nurse Bobbi McDonald escorted M.B. to the examination room and took her vital signs before leaving. Respondent came into the room, alone, and closed the door. At that visit, M.B. was wearing khaki mid-thigh cargo shorts, a blouse that tied around her neck, and bikini underwear. Respondent asked about her pain, touched points on her body to identify the exact pain locations, and adjusted her back manually. He then suggested injection of a steroid as a stop-gap measure prior to scheduling her for a fluoroscope injection later. M.B. agreed to the plan. Respondent left the examination room to get the medication. When he returned, he was alone and again he closed the door. Respondent told M.B. to pull her shorts down below her waist and to cover herself with a paper gown. She pulled her shorts and underwear down about halfway across her buttocks, which was lower than she would normally pull them for fluoroscope injections. Respondent began to clean the area for the injection and asked M.B. to pull her garments down further, below her buttocks. Respondent then pulled the table out from the wall and he went between the table and the wall. He injected M.B.’s hip about five times with a solution containing Depo Medrol 80, Toradol 60, Lidocaine, and Marcaine 1 ml. As he injected her, M.B. could feel Respondent’s groin touching her hip. She could feel what she believed to be Respondent’s erect penis rubbing against her in a back and forth motion. By this time, her paper gown had fallen off, exposing her buttocks and vaginal area. After the last injection, M.B. felt Respondent’s fingers touching her vagina. As she pushed upward to get off the table, M.B. felt Respondent touch her vagina again. She got off the table, pulled up her pants, and sat down as the doctor began talking to her. M.B. did not say anything to Respondent. She immediately believed that she had been sexually assaulted, but was too confused and shocked to say anything to anyone. M.B. did not initially report Respondent’s behavior to the Back Center. She later reported her allegations to the Melbourne Police Department and also filed a civil lawsuit against Respondent and the Back Center. (M.B. would continue to return to the Back Center, but did not see Respondent again for any of her treatments.) M.B.’s testimony was not as immediately believable as that of some of the other witnesses. Based on her personality, fear of the process, or some other factor, she seemed to be fairly emotionless in describing the incident. However, inasmuch as her testimony was corroborated by what other patients had experienced, her clearly enunciated statements are convincing. Further, M.B. exhibited extreme visual cues as to her intense dislike for Respondent at the final hearing. The testimony of M.B. alone would not be clear and convincing evidence of any wrongdoing by Respondent. However, her testimony is corroboration of and support for the testimony of other victims. Respondent's employment at the Back Center was terminated shortly after M.B.'s appointment with him. There is no evidence as to Respondent's employment from September 2011 until he went to Advantacare in March 2012. Patient A.H. Patient A.H. presented to Advantacare (Daytona Beach office) on January 9, 2013, in an effort to address pain she was suffering as a result of an automobile accident that occurred in October 2012. She wanted to reduce her pain while also reducing the amount of medications she was taking. A.H. had a job which required driving, so she needed to be as drug-free as possible. A.H. was escorted to the examination room. She remembers that Respondent came in, closed the door, and propped it shut. Respondent remembers the door to that room being open, that it would open by itself unless something was placed against it. The medical technician assigned to Respondent said the door did not have any problems, but it would always be half open. There is no corroborated evidence as to whether the door to the room was open, closed, or ajar when A.H. was being examined. Respondent examined A.H. and began to show her some exercises and stretches that he thought might alleviate some of her pain. As she was sitting in a chair being shown how to stretch, A.H. felt Respondent’s erect penis pushing against her back. She quickly told Respondent “I’ve got it” in order to stop his actions. She got up quickly and moved to another chair in the office. A.H. clearly described what she had felt and had no confusion or doubt about what happened. Her testimony about the incident was credible. Respondent then told A.H. to lie on the table on her side with her arms stretched out in front of her. Despite what had just happened, A.H. complied with his directions.5/ When she got into position, Respondent had A.H. move her body over to the very edge of the table and began to manipulate her back. As his hands continued down her back, she felt his hands go down inside her panties. As this happened, she could feel Respondent “humping” her, grinding his groin area against her backside. Respondent then told A.H. to change positions on the table, moving her feet to the opposite end. Amazingly, she again complied with his instructions. Respondent began touching her upper thigh near her vagina and “did the same thing he had done before.” At that, A.H. quickly moved off the table and onto a chair, where she sat rigid and refused to move. Respondent seemed calm and relaxed, showing no sign of having acted inappropriately. A.H. did not tell anyone at Advantacare about the incident on that day because she could not fully grasp what had happened. As she began to understand the situation better, she was worried about reporting the incident because it would be her word against the doctor’s. A.H. did tell another doctor (Dr. Jacobson) about the incident when she saw him the next day for a regularly scheduled appointment. Dr. Jacobson had been an employee with Advantacare and presumably relayed A.H.’s allegations to the center. A.H. also reported the incident to the Board of Health and to law enforcement. She later contacted an attorney about filing a civil lawsuit against Respondent. A.H. did not return to Advantacare for treatment after this event because of the traumatic impact of the incident. Respondent has no independent recollection of A.H. as a patient, but said he did not touch her inappropriately. A.H.’s testimony was believable. She was a credible witness and articulated her testimony clearly. It is strange that A.H. would continue to obey Respondent even after he had touched her inappropriately, but she was obviously a compliant person, especially as it relates to physicians. Respondent’s defenses to allegations by patients Respondent claims he never saw a written chaperone policy at the Back Center but that he knew that it existed. According to him, there was insufficient staff available to make it possible to comply with the policy. Respondent’s testimony in this regard is rejected as being contrary to better, more persuasive evidence. Respondent said he was on several medications for “five or six years” prior to the final hearing, including Zoloft for mild depression, Lisinopril for hypertension, and Toprol for hypertension. One of the possible side effects of those medications is impotence or erectile dysfunction. However, during the time he was taking these drugs, Respondent fathered his two children. There is no competent evidence that Respondent suffered from impotence or erectile dysfunction during the time of any of the allegations about sexual misconduct. Respondent usually wore a lab coat when treating patients. The coat is long and had large pockets in the front, at about groin level. Respondent would keep empty syringes in his coat pocket. He suggests that female patients who said they felt his erect penis were actually feeling the syringes. His suggestion is not very plausible or persuasive. Respondent demonstrated at final hearing the normal physical stance he took when doing an injection of a patient in an examination room setting. He suggested that his body would be turned at a 45-degree angle from the patient rather than facing them directly, thus eliminating the possibility of full frontal contact with the patient. He also said that he generally stood four or five inches away from the patient, but might come into contact with the patient occasionally. Neither the statements nor his demonstration were persuasive. Respondent’s contention is that each and every one of the patients who alleged sexual misconduct was lying. He suggests that patient D.K. was overweight and thus would not have sexually aroused him. Also, he maintains that her description of the injections being performed while Respondent was rubbing against her would have necessarily resulted in horrible pain at best or a broken needle at worst. He claims that since patient M.B. was married to a policeman, she would have necessarily taken photographs of her numerous injections to preserve a record and she would have complained immediately. Her failure to do so, he suggests, impugns her testimony. Respondent contends that patient T.J.’s tardiness in reporting her allegations suggests the allegations were false. Respondent refutes A.H.’s allegations on the basis that there was a disagreement as to the physical layout of the medical office. Respondent contends there is no evidence that patient S.D. (his alleged lover) was his patient, even though there is a stipulation to that effect. Despite these speculative defenses, the evidence presented by the alleged victims is credible and accepted as fact. Failure to update practitioner profile A letter dated March 27, 2013, advising Respondent of his termination from participation in the Medicaid Program, was mailed to Respondent at two separate addresses: 2222 South Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e., the address of the Back Center, and 930 South Harbor City Boulevard, Melbourne, Florida 32901, the address for Osler (the company with whom the Back Center merged at some point in time). The letter to 2222 South Harbor City Boulevard was received on April 1, 2013, and an acknowledgement was signed by Chandra Carrender, a Back Center employee. Respondent’s employment with the Back Center had been terminated some 16 months previously, i.e., in August 2011. The letter mailed to 930 Harbor City Boulevard was returned as undeliverable. The termination letter provided Respondent notice of his right to contest the decision. He was given 21 days from receipt of the letter to file a Petition if he wanted to challenge the termination. Respondent did not file a challenge, so on or about June 21, 2013, a Termination Final Order was filed by the Agency for Health Care Administration (AHCA), setting forth Respondent’s termination from participation in the Florida Medicaid Program. The termination was issued pursuant to section 409.913, Florida Statutes. By law, Respondent was required to update his Florida practitioner profile within 15 days of receipt of the Termination Final Order. The Termination Final Order was mailed to Respondent, return receipt requested, at two different addresses: The 930 South Harbor City Boulevard address and the 2222 South Harbor City Boulevard address. Respondent denies having received the letter or TFO until just prior to the formal administrative hearing in this matter. Licensed physicians in the State of Florida are required to maintain a current address of record with the Agency for Health Care Administration (AHCA) and the Department of Health. Neither Respondent nor the Department provided evidence as to what Respondent’s official address of record was at the time the TFO and the letter were sent to Respondent at the two Harbor City Boulevard addresses. According to the deposition testimony of Michael West of the AHCA Medicaid Program Integrity office, the notices were sent to Respondent’s “address of record” per section 409.913(6), Florida Statutes. West’s testimony, however, did not specify what address that was. It might be logically presumed that one or both of the Harbor City Boulevard addresses were the “address of record,” because that is where the notices were mailed. However, there is no clear and convincing evidence as to Respondent’s official address of record at the time the Termination Final Order was mailed. The statutory section referred to by West states: Any notice required to be given to a provider under this section is presumed to be sufficient notice if sent to the address last shown on the provider enrollment file. It is the responsibility of the provider to furnish and keep the agency informed of the provider’s current address. United States Postal Service proof of mailing or certified or registered mailing of such notice to the provider at the address shown on the provider enrollment file constitutes sufficient proof of notice. Any notice required to be given to the agency by this section must be sent to the agency at an address designated by rule. Respondent did not update his Florida practitioner profile because he claims never to have received a copy of the TFO or the letter. Neither Respondent nor the Department provided direct evidence of Respondent’s “address last shown on the provider enrollment file” as of March 27, 2013.6/ Other factual considerations Respondent was terminated from employment at the Back Center in September 2011. The termination occurred as follows: T.J. reported the alleged October 29, 2010 incident in April 2011. Dr. Hynes was already aware of another incident (from D.K. in January 2011). Dr. Hynes met with Respondent to discuss his alleged behavior. Respondent denied the allegations, saying that people just seem to like him and take advantage of him. He said the patients were lying about the incidents. Dr. Hynes mandated at that time that Respondent have a chaperone in the examining room with every female patient. Rather than being allowed to exercise “medical judgment” like other doctors in the clinic, Respondent was ordered to always use a chaperone with all female patients. After patient C.J.’s allegations came to light in May 2011, Dr. Hynes told Respondent that three times was enough; something had to be done. The Back Center commenced preparation of a termination letter. The letter was to tell Respondent that, pursuant to his Employment Agreement, the Back Center was providing him the 180-day notice of termination of employment “without cause.” The purpose of that letter was to allow Respondent time to find a job and not have a blemish on his record. One of the bases for the termination letter was that Respondent had been referred to the Physicians Recovery Network (PRN) for counseling to address his behavior. Dr. Hynes presumed Respondent was obtaining that counseling. However, when C.J. reported the incident on May 4, 2011, Dr. Hynes found out that Respondent had not been going to PRN as he had previously indicated. At about the time the 180-day letter was being drafted, another incident (by patient M.B.) was reported to the Back Center. Upon hearing of that allegation, Dr. Hynes verbally fired Respondent, effective immediately, with cause. The 180-day letter was not actually delivered to Respondent until after the verbal termination, so the letter was moot when it arrived. Respondent did not tell his next employer, Advantacare, that he had been terminated from employment by the Back Center. He also did not advise Advantacare about the sexual allegations made by patients at the Back Center. In summary, Respondent engaged in activities of a sexual nature with patients at the Back Center in December 2010, January 2011, May 2011, and August 2011 (in addition to his relations with S.D. in 2008–2010). He engaged in sexually related touching of a patient at Advantacare in January 2013. His employment with the Back Center was terminated in September 2011; his employment with Advantacare was terminated in April 2013. Former patients of Respondent expressed dismay that he was being charged with the violations set forth in the Administrative Complaint. They found Respondent to be a caring and professional doctor. It is clear Respondent did not treat all his patients the same way he treated the victims identified herein. Some of his co-workers said they did not see Respondent engage in any of the alleged actions. They did not receive any complaints from other patients. Respondent obviously has a stellar reputation with some of his patients and co-workers. That status, however, does not excuse his behavior with the victims in the present cases. It is also alleged that Bobbi McDonald was a rumor-mongerer and a liar. She appeared credible at final hearing and there is no competent, substantial evidence to support the dispersions cast by others. It should be noted that several witnesses identified by Respondent were displeased with the manner in which they were questioned by Department personnel prior to the final hearing. The witnesses expressed extreme discomfort when Department employees (attorneys) suggested that Respondent was “an addict” or a sociopath. While a state agency is bound to pursue all claims against individuals which it is responsible for licensing and monitoring, it is improper to harangue or disparage such persons in order to sway potential witnesses’ testimony. Upon full review of the evidence in this case, the potential witnesses who complained about the Department’s aggressive nature did not provide substantive testimony on the issues of this case. Thus, any harm which may have resulted from the Department’s statements would not affect the final decision herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health revoking Respondent, Albert Esmailzadeh, M.D.’s license to practice medicine in the State of Florida. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case, and that payment of such costs be assessed against Respondent, Albert Esmailzadeh, M.D. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2014.
Findings Of Fact Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period. At the time of F.S.' 1984 visit, the standard of care for a male over 40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back. Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on F.S. by Respondent. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point, F.S was referred for blood tests specific to prostate cancer and to an urologist. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history. The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido. On March 20, 1989, Respondent began treating Patient C.C. and admitted C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital. Respondent's discharge summary for C.C. dated April 4, 1989, included the following: . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation. She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within 24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . . The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons. Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her. On June 20, 1989, Respondent received a telephone call from C.C. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida. Respondent was seeing the patient as both a friend and a medical doctor. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed. Respondent did not make any sexual advances toward C.C. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints. ENTERED this 3rd day of March, 1993, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1993.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue Is the Respondent unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of any mental or physical condition? If yes, what is the appropriate disciplinary response to that impediment?
Findings Of Fact The Petitioner, in accordance with Chapters 20, 455, and 458, Florida Statutes, regulates the practice of physician's assistants in Florida. The Respondent practices as a physician's assistant in Florida. His license number is PA002355. PRESENT EMPLOYMENT At present, the Respondent works as a physician's assistant for Michael Dulaney, M.D. Dr. Dulaney is a board- certified family practitioner. The Respondent has worked for Dr. Dulaney for approximately one year. Dr. Dulaney has been satisfied with the Respondent's work. Dr. Dulaney has had no reports of problems with the Respondent's conduct reported by patients or other office staff. In particular, Dr. Dulaney does not have any specific knowledge concerning complaints made about Respondent related to sexual misconduct from the period February, 1992 forward. At present, the Respondent's practice in Dr. Dulaney's office is limited to treatment of adults; however, Dr. Dulaney would not be opposed to having the Respondent treat minors and adults. Dr. Dulaney is aware of the reasons for the present restrictions on the Respondent's practice, limited to care of adults. These limits are as had been imposed by the Physicians Recovery Network (PRN) based upon the Respondent's mental health status. The controls that are in place by Dr. Dulaney to limit the Respondent's present practice to adults include an inquiry by office staff when an appointment is made by a patient as to the age of the patient and another check when the patient arrives for the appointment as to the patient's age. The Respondent is also required to check the patient's age before rendering care. The protocol followed by Dr. Dulaney in his practice is to the effect that no female patient is examined by a doctor or a physician's assistant without a second staff member being in attendance. The second staff member would be a female. Should the Respondent not be allowed to provide care to minors in the future, Dr. Dulaney would allow the Respondent to remain as a physician's assistant and treat adults only. HISTORY On or about June 18, 1992, following allegations regarding custodial sexual battery of his 14-year-old stepdaughter, K.B., the Respondent entered into a monitoring contract with the PRN. The Respondent had also sexually abused his six or seven-year-old daughter from his first marriage. The Respondent was sexually abused by male and female siblings as a child. Raymond Pomm, M.D. specializes in general psychiatry, as well as addiction psychiatry. Among other duties, Dr. Pomm is a staff psychiatrist for the PRN. While under the terms of the monitoring contract in connection with the State of Florida Department of Business and Professional Regulation's Impaired Practitioner's Program, Dr. Pomm consulted the Respondent's physician employers on occasion to determine the Respondent's conduct as a physician's assistant. Dr. Pomm never received a report from the employers that the Respondent was acting inappropriately. On these occasions, the employers would indicate that they were satisfied with the Respondent' s work. When the Respondent signed the monitoring contract with the PRN, he agreed not to see patients under 18 years of age; to have a supervising physician report to the PRN on a quarterly basis regarding his behavior. The Respondent's supervising physician was responsible to make sure that patient information forms were handed out to patients to allow the patients to give immediate feedback concerning their perception of the Respondent's behavior. The supervising physician was to review 10 percent of the Respondent's charts on a quarterly basis. The Respondent was to receive ongoing therapy from John Vallely, Ph.D., a psychologist. On December 28, 1993, Dr. Goetz, the Director of the PRN, wrote to the Secretary of the Department of Business and Professional Regulation to advise the Secretary that Dr. Goetz was convinced that the Respondent's impairment seriously effected the public health, safety and welfare. This was followed by action by the State of Florida, Department of Business and Professional Regulation, Board of Medicine, to bring the Administrative Complaint, under Case No. 93-07340, charging the Respondent with being unable to practice his profession as a physician's assistant with reasonable skill and safety to patients based upon his illness and mental status. The Administrative Complaint makes reference to the opinion of Dr. Vallely. The opinion of Dr. Vallely which promoted the complaint was that the Respondent carried an Axis II Diagnosis of Mixed Personality Disorder with Obsessive- Compulsive, Anti-Social and Paranoid Features, and that the Respondent would need long-term therapy. The Administrative Complaint makes reference to a recommendation by Dr. Vallely that the Respondent's practice be limited to patients 18 years of age and older. Dr. Vallely did not testify in this proceeding to render his opinion concerning the Respondent's fitness to practice. Testimony on this subject was presented by Barbara A. Stein, M.D., testifying for the Petitioner. She is board-certified in general psychiatry and forensic psychiatry. In opposition to that testimony, the Respondent presented the testimony of Keith R. D'Amato, Ph.D., who is a clinical and forensic psychologist, who treated the Respondent. The Respondent also presented the testimony of Gini Fort, M.A., in counseling psychology, who worked with Dr. D'Amato in treating the Respondent. The Administrative Complaint makes reference to findings by George Bernard, M.D., who examined the Respondent and diagnosed the Respondent as suffering from pedophilia, opposite sex, non-exclusive type. Dr. Bernard did not testify in this proceeding. The Administrative Complaint makes reference to a determination on July 8, 1993, when the Respondent was evaluated by Gene Abel, M.D., of the Behavioral Medicine Institute in Atlanta, Georgia, in which Dr. Abel recommended that the Respondent not be in a medical setting, where the Respondent had proximity to girls under 18 years of age, nor in proximity to his former victim, taken to mean the Respondent's stepdaughter, until the Respondent had further treatment. Dr. Abel did not testify in this proceeding. Finally, the Administrative Complaint makes reference to the reference by Dr. Vallely, on December 16, 1993, in which Dr. Vallely described the Respondent as "a highly dangerous sex offender with pedophilic desires and attractions". The Respondent was also seen by Michael J. Herkov, Ph.D. at the time the Respondent was seen by Dr. Bernard. Dr. Herkov is a psychologist. Dr. Herkov did not testify in this proceeding. The treatment and evaluations performed by Drs. Vallely, Bernard, Herkov and Abel were all in association with the monitoring performed by the PRN. Although the health care providers associated with the Respondent that have been mentioned in the prior paragraph did not testify in this proceeding, their insights assisted Drs. Stein and D'Amato and Ms. Fort in arriving at their opinions concerning the Respondent's condition. Consequently, it is to some advantage to describe the history of treatment and evaluation by those health care providers, notwithstanding the inability to rely upon their independent judgment in determining the Respondent's present ability to render care with reasonable skill and safety. The Respondent began seeing Dr. Vallely in June, 1992 and received treatment off and on until December, 1993. For the benefit of the PRN, Dr. Vallely indicated that the Respondent carried a diagnosis of pedophilia and mixed personality disorder with obsessive- compulsive, antisocial and paranoid features. Dr. Vallely tried to address these conditions. Other attempts were made by the PRN to assist the Respondent. On December 9, 1992, the Respondent saw Drs. Bernard and Herkov. They diagnosed the Respondent as having pedophilia, opposite sex, non-exclusive type. At that time, according to a report by these health care providers, there was no information indicating that the Respondent was being presently sexually inappropriate with patients or any indication that he would engage in that behavior in the future. The recommendation by Drs. Bernard and Herkov was that the Respondent continue to be restricted in seeing children under the age of 18, be they male or female, until such time as the Respondent's treating therapist felt that the restriction was no longer necessary. The Respondent was initially treated by Dr. Vallely through June 18, 1993, at which time, Dr. Vallely suspended the Respondent's care. At that juncture, Dr. Vallely expressed the view to the PRN that the Respondent was manipulating therapy in attempting to gain closer contact with his stepdaughter. At that time, the Respondent expressed the view to the PRN that he did not believe that he was being heard by Dr. Vallely and that Dr. Vallely was overreacting. The Respondent requested another therapist to resolve this conflict. The PRN recommended that another evaluation be performed by a professional. This led to an evaluation by Dr. Abel in Atlanta, Georgia. The evaluation by Dr. Abel took place on July 8, 1993. Dr. Abel is recognized as an expert in the treatment of child sexual abusers. Although Dr. Abel did not arrive at a formal diagnosis, he summarized his belief of the continuing existence of pedophilia on the Respondent's part and a concern about the Respondent's manifest symptoms of arousal in relation to minor females. That concern was addressed through a penile plethysmophgraphy performed on the Respondent, in which the Respondent evidenced arousal to young girls. In his conclusions, Dr. Abel recommended that the Respondent should not be allowed to treat girls under 18 years of age. The Respondent then returned to receive therapy from Dr. Vallely. The Respondent and Dr. Vallely continued to have conflict concerning the Respondent's relationship with his stepdaughter and the Respondent's intention to remarry his ex-wife. Eventually, the Respondent was expelled from the program administered by Dr. Vallely. This expulsion took place on December 16, 1993 and was followed by the correspondence of December 28, 1993 by Dr. Goetz recommending that the Department of Business and Professional Regulation find that the Respondent's condition seriously effected the public's health, safety and welfare. The Respondent was referred to Dr. D'Amato from the State Attorney's Office. This was in association with the case of State of Florida v. Stephen Allan Newbern, in the Circuit Court of Duval County, Florida, Case No. 92-3347CF CR-C, as agreed to by the Respondent's counsel. The day Dr. D'Amato first saw the Respondent was February 10, 1994. The case described was the case in which the Respondent was accused of custodial sexual battery directed to his stepdaughter, K.B. Following the Respondent's decision to remarry his ex-wife, the Respondent was arrested in association with the aforementioned Circuit Court case, in which he had previously been allowed probation to participate in the program conducted by Dr. Vallely. The reason for the Respondent's arrest was premised upon a report by Dr. Vallely concerning the Respondent's decision to remarry his ex-wife. The Circuit Court case was then disposed of on June 24, 1994, in which an order was entered by the court following the Respondent's plea of guilty to a lesser included offense in Count I, lewd and lascivious act. For that plea, the Respondent had his guilt withheld; the Respondent was placed on community control for a period of two years, followed by eight years probation; and the Respondent was ordered not to have contact with his stepdaughter, directly or indirectly, without consent from his counselor or the Community Control Officer. The Respondent was ordered to pay for his stepdaughter's counseling or treatment through a treatment facility or counselor to which the stepdaughter had been referred, as directed by the Community Control Officer. The Respondent was ordered to continue his psychosexual counseling through Dr. D'Amato, who had substituted for Dr. Vallely. In this connection, the Respondent, in February of 1992, had voluntarily hospitalized himself based upon panic attacks and depression. Subsequently, an investigation was conducted by the State of Florida, Department of Health and Rehabilitative Services and the INS of the Navy; and the Respondent was arrested and incarcerated for 21 days for sexually abusing his stepdaughter. As a consequence, he was referred to the KIDS Sexual Offender Program, in Jacksonville, Florida, and directed to receive treatment from Dr. Vallely. In March or April of 1992, the Respondent was advised by his Naval Preceptor, Dr. Carrierre, to refer himself to the PRN. The Respondent accepted that advice and took the referral in May, 1992 and signed a contract in June, 1992 to monitor his mental health status. The Navy found him guilty of the sex offense and allowed him to remain in the service on active duty until his retirement on October 31, 1992. During this time, he served as a physician's assistant but was limited in his practice to adults only. When the Respondent attempted to reunite with his ex-wife in February, 1993, Dr. Vallely suspended him from the KIDS Program. In June, 1994, the Respondent was accused of violating his probation associated with the case in which he was a participant in the KIDS Program. The allegation of violation of probation was in relation to the Respondent's decision to stay with his ex-wife and stepdaughter in January, 1994. The Respondent was not prosecuted for this violation because he agreed to enter Dr. D'Amato's sexual offender program. In turn, he entered a nolo contendere plea to lewd and lascivious act and had the order entered on June 24, 1994 setting the terms of continued probation. The Respondent received treatment from Dr. D'Amato and Ms. Fort for approximately two years. In his practice, Dr. D'Amato specializes in the treatment of sexual offenders and has treated 500-700 persons with those conditions. Of those persons, two to three percent have been referred for a jail sentence and another two to three percent have been terminated from the treatment program. To deal with the Respondent's pedophilia, Dr. D'Amato conducted an initial clinical interview. Dr. D'Amato performed a number of tests to gain an impression of the Respondent's condition, to include the Minnesota Multiphasic Personality Inventory, the Beck Depression Inventory, the Columbia Sexual Screening Questionnaire, the Jackson Incest Blame Questionnaire, the Wilson Sex Fantasy Questionnaire, the Sexual History Questionnaire, and the Sexual Interest Card Sort. Following the initial assessment, Dr. D'Amato entered the Respondent into a treatment program, which had four levels. Level I was designed to insure safety of the community by restricting movement and by insuring that the Respondent owned up to and took responsibility for the sexual offense that had been committed against his stepdaughter. Levels II and III were devoted to psycho-educational activities, where the Respondent was expected to learn to identify antecedents to the sexual misconduct that had been committed. Level IV was a relapse-prevention process to allow the Respondent to develop a comprehensive plan that could "offshoot" any problems, stresses or arousals that would lead the Respondent to re-offend in the future. During the first phase of the treatment received by the Respondent, an abuse letter was written, a meeting was held with the victim to confront the abuse, history of the abuse was taken, and an apology letter was written. During the second and third phases, the Respondent learned to identify stresses that may lead to problems and to develop empathy for the victim. The emphasis of Dr. D'Amato's program that he administered to the Respondent was cognitive in nature. The program was anticipated to last between two and five years, depending on the person receiving the therapy. Patients in the program are seen in group treatment and, in some instances, receive marital or family therapy individually. The Respondent had polygraphs administered to him to attempt to determine if there was ongoing sexual abuse and to determine if the types of fantasies that the Respondent was entertaining when he entered the treatment program were still in evidence. In treating the Respondent, Dr. D'Amato did not use behavioral therapy to any large extent. This choice was made because having the Respondent undergo polygraphs and looking at the Respondent's psychological assessments which were done over the years, led Dr. D'Amato to believe that the primary problem that the Respondent had was in distorting information. It was observed, through the polygraph examinations, that the Respondent was not showing deviant sexual arousal. Therefore, it was not deemed necessary to offer treatment to deal with that form of problem. It was deemed more important to deal with cognitive restructuring of the Respondent and his view of life and people and interpersonal relationships. The Respondent did receive some behavioral training in his treatment by Dr. D'Amato, referred to as covert desensitization and role playing. Dr. D'Amato believes that cognitive therapy is the best approach to treating pedophilia, non-exclusive type, which the Respondent evidenced. Non-exclusive pedophiles, as defined in DSM-IV, have age-appropriate relationships, whereas fixated pedophiles focus exclusively on children. The Respondent was last seen by Dr. D'Amato in March, 1996. At that time, Dr. D'Amato diagnosed the Respondent as having a mixed personality disorder, NOS., with slight depression, not of a clinical nature, that the Respondent still suffered from post-traumatic stress disorder and pedophilia, non-exclusive type in remission. Dr. D'Amato does not believe that the Respondent needs to undergo further treatment to address the Respondent's condition, in that the Respondent is not showing any active symptoms, has acted in a responsible manner in his work and life, and has integrated back into his family. To require therapy when it is not needed would cause the Respondent to be more resistant, and the Respondent would not grow from the experience, according to Dr. D'Amato. Dr. D'Amato believes that the Respondent has good relapse prevention skills and has shown that he is implementing those skills in his life. Dr. D'Amato relied upon the polygraph examinations to determine whether the cognitive therapy received by the Respondent was successful. In doing so, Dr. D'Amato recognizes that the polygraph measures physiological responses following the subject's answer to a question. Dr. D'Amato did not refer to the prior penile plethysmophgraphy testing to confirm the Respondent's status and did not administer that test. He sees the latter test as being a measurement of sexual response to pictures, which is less important to Dr. D'Amato than the question of whether the Respondent is having sexual fantasies or acting out in a sexually-inappropriate way, which Dr. D'Amato believes the polygraph examination would uncover. Dr. D'Amato has experienced 95 percent success in the treatment of sexual offenders. Nonetheless, he recognizes that this success does not establish that persons who are pedophiles, who have not been known to re-offend, are cured. Dr. D'Amato is not aware of any reports concerning misconduct by the Respondent in treating patients. Dr. D'Amato does not believe that the Respondent should have his practice restricted to adults only. Dr. D'Amato was impressed with the Respondent's ability to deal with stress in relation to a death within the Respondent's family, various legal problems associated with the Respondent's sexual abuse of his stepdaughter, his work load, and the re-unification of the Respondent's family, without committing further sexual abuse based upon the stress. Dr. D'Amato saw the experience which the Respondent had in re-unifying his family as being helpful to his treatment by giving the Respondent the opportunity to deal with the realities of those relationships and to reconstruct those relationships in a positive manner. Dr. D'Amato observed that the Respondent's religious convictions assisted the Respondent in his rehabilitation by sharing the experience with his family and providing a code of conduct to follow. Dr. D'Amato recognized that the Respondent's character structure would not change over time but believed that the Respondent would change his behavior based upon new strategies and coping lessons that he had learned in the treatment. Dr. D'Amato expressed the opinion that if the Petitioner automatically revoked or suspended the Respondent's license to practice as a physician's assistant, the Respondent would not come forward and seek treatment in the future if he experienced a problem, and the result would be more sexual abuse. Ms. Fort expressed the opinion that the Respondent was a low or no- risk candidate for recidivism. Further, she indicated that the Respondent had successfully handled stress related to his older son coming home and financial difficulties. Ms. Fort expressed the belief that given the Respondent's successful completion of therapy, the Respondent could be in close contact with children in private. In performing her evaluation of the Respondent, Dr. Stein spoke to Dr. D'Amato and Ms. Fort concerning the care they rendered to the Respondent. Dr. Stein saw the Respondent on referral from the Physicians Resource Network, formerly known as the Physicians Recovery Network. Dr. Stein examined the Respondent in February, 1996. Dr. Stein's evaluation included an interview with the Respondent and preparation of a history. Dr. Stein also had access to collateral information from other treatment professionals who had seen the Respondent. Dr. Stein contacted individuals who were familiar with the Respondent's professional and private life. Dr. Stein arranged for Flora Zaken- Greenberg, Ph.D., a clinical psychologist, to perform a clinical interview, record review, and psychological testing by use of a WAIS-R, Beck anxiety inventory, Beck depression inventory, MMPI-2, MCMI-III, and Roschach. Dr. Stein took all of these matters into account in preparing a report of her forensic psychiatric examination. That report was rendered on March 9, 1996. Dr. Stein, in her report, and at hearing, expressed the opinion that the Respondent suffers from pedophilia, non-exclusive type, DSM-IV 302.2, and personality disorder, not otherwise specified, which includes narcissistic, antisocial and dependent personality traits. Dr. Stein pointed out that pedophilia is a type of sexual deviant disorder, which lasts for at least six months, in which setting, the individual has strong urges, behaviors or fantasies of having sex with a prepubescent child, and this impairs the life of the pedophile. In a non-exclusive type of pedophilia, the individual may also have relationships with adults. Dr. Stein described the Respondent's personality disorder as being a circumstance in which the Respondent has difficulty viewing and interacting with the world. The Respondent sees the world through a distorted view, thinking in a distorted way, interacting in a distorted way, being impulsive and having a tendency to have mood problems from time to time. Those traits endure and impair him. That disorder does not necessarily mean that the Respondent could not work. In Dr. Stein's opinion, pedophilia cannot be cured and is a disease that has a very high relapse rate, notwithstanding that there are periods in which the pedophile does not have urges or behaviors or fantasies directed to prepubescent children. Dr. Stein holds the opinion that the Respondent will, given his condition of pedophilia, be at greater risk of sexually acting out inappropriately regardless of whether it is in the workplace or elsewhere. Dr. Stein expresses this opinion with the knowledge that the Respondent has learned a great deal from his sexual offender treatment and that the experience that he has had in participating in the treatment has lowered the risk for him to re- offend. Nonetheless, according to Dr. Stein, his psychological testing shows an underlying character structure that creates a potential for sexual deviance, impulsivity, antisocial acts, and impaired interpersonal relations, particularly so when under stress; and that set of circumstances has not changed overtime. Dr. Stein believes that the Respondent should have his practice as a physician's assistant restricted to adults only and the practice monitored. Dr. Stein believes that the monitoring should include biannual polygraph examinations, in which the following questions are asked: (1) have you had sexual feelings towards children under the age of 18 accompanied by your adult patients?; (2) have you concealed any relevant sexual history from your therapist?; (3) have you attempted to access those or other children under the age of 18?. Finally, Dr. Stein believes that the Respondent should participate in a relapse prevention group for the next 12 months and at least at quarterly intervals beyond that point for an indefinite period. She believes that this would assist the Respondent in relapse prevention, to build a repertoire to decrease his risk for re-offending and to protect society from a professional in his position of trust who has a disorder which cannot be cured. Dr. Stein believes that the additional 12-month therapy, followed by quarterly therapy for an indefinite period, is necessary to preserve a degree of continuity and to reinforce the skills achieved by the Respondent in addressing his condition and promotes the further recognition by the Respondent that he knows that he has to answer to people, and that there are external controls in a setting in which his internal controls are not as good as they need to be. The use of a polygraph on a biannual basis would be a means to aid in the process of exerting controls over the Respondent's conduct. Dr. Stein does not believe that it is necessary to revoke or suspend the Respondent's license completely to address his condition and protect the public. From the views held by Drs. Stein and D'Amato and Ms. Fort, it is clear and convincing that the Respondent has a mental condition which effects his practice as a physician's assistant and the ability to render care with reasonable skill and safety to his patients. According to the evidence, the Respondent has performed his practice in an acceptable manner when limited to treating adults only. Dr. D'Amato and Ms. Fort believe that the Respondent could practice as a physician's assistant in contact with children. Dr. Stein disagrees with that opinion. The experts also disagree concerning recidivism rates for pedophiles. Dr. D'Amato and Ms. Fort believe that the rate is low for their program. Dr. Stein does not generally hold that opinion. Given the seriousness of the Respondent's illness and the risk it presents to children, the lack of ability to cure his condition, and the possibility of relapse, however slight, there is a real concern about patient safety should the Respondent be allowed to practice as a physician's assistant treating children. To that end, Dr. Stein's opinion is more compelling when she urges restrictions on the Respondent's practice. Although Dr. D'Amato does not believe that a relapse prevention program is needed for the Respondent, if determined to be needed, he is persuaded that a program should only extend for six months. Having considered the views held by Drs. Stein and D'Amato, a further relapse prevention program of six months provided by Dr. D'Amato, together with quarterly therapy for an indefinite period beyond that point, with biannual polygraph tests of the sort recommended by Dr. Stein, is appropriate to insure that children, who are treated in the office where the Respondent practices, remain safe. No evidence was produced which would suggest that the Respondent should be completely denied the privilege to practice as a physician's assistant based upon concern that he would not proceed with reasonable skill and safety by reason of his mental illness. The restrictions that are discussed above adequately protect the public without depriving the Respondent of his livelihood.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is RECOMMENDED that a Final Order be entered finding the Respondent in violation of Section 458.331(1)(s), Florida Statutes, restricting his practice as a physician s assistant to adults only, requiring the Respondent to undergo an additional six months of relapse prevention therapy, followed by quarterly therapy sessions for an indefinite period and biannual polygraph examinations. DONE AND ENTERED this 27th day of November, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Terry D. Bork, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street1 Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
