The Issue The purpose of this proceeding is to determine whether Respondent violated section 460.413(1)(i), Florida Statutes (2013), by committing sexual misconduct, as alleged in the Administrative Complaint. In the event that a violation is established, then the appropriate penalty to be imposed also must be established.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and upon the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency charged with the regulation of the practice of chiropractic medicine pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Respondent, Steven Read, D.C., is a licensed chiropractic physician in the State of Florida, and holds license CH 5979. Respondent is the owner of Ortega Chiropractic Clinic (Ortega) in Jacksonville, Florida, and his address of record is 5367 Ortega Boulevard, Jacksonville, Florida 32210. Respondent has been practicing chiropractic medicine in the Jacksonville area for 27 years. He has been running his own office since 1996. Respondent has no prior discipline against his license. Ortega is located in a two-story building. The downstairs includes a waiting room and check-in area, the office manager’s office, and three patient examination rooms. Upstairs, there is a large rehabilitation room. Adjacent to the rehabilitation room is a small reception area and Respondent’s office. The rehabilitation room includes three examination tables, as well as several pieces of exercise equipment used to assist patients with stretching and strength-building exercises. Patients routinely receive treatment in the rehabilitation area as their condition warrants. Ortega has what was described as an open-door policy when it comes to examination rooms. In other words, with the exception of when a patient is in an examination room changing clothes, the examination room doors remain open during treatment. This policy was in place at the time of the events giving rise to this case. At the time of her initial visit to Ortega, patient K.W. was a 52-year-old female. She was in a car accident on or about April 4, 2014, and presented to Ortega on April 7, 2014, with pain in the neck, right shoulder, lower back, right hip, and right buttocks, along with persistent stiffness and pain in her lower right back and right posterior thigh. She described the constant pain as sharp and shooting, and stiffness with aching, at a level of 6 out of 10. K.W. had nine treatments at Ortega related to her post-accident pain. Typically, she would receive electric muscle stimulation, moist heat, and massage therapy from a massage therapist. Respondent would provide chiropractic adjustments. Those adjustments were spinal adjustments, including her cervical spine, thoracic spine, and lumbar spine, as well as the sacroiliac joint, and were done with K.W. lying on her back, stomach, and side. During each visit, Dr. Read examined K.W., including performance of palpation and range of motion assessments, and performed an adjustment. K.W.’s condition improved over the course of her treatment with Dr. Read. By all accounts, the first eight appointments consisted of the treatments described above and were unremarkable. K.W.’s ninth appointment was April 23, 2014. Her appointment was at 8:30 in the morning. K.W. was wearing sweatpants and a tee shirt. Consistent with her normal practice, she was not wearing underwear. Dr. Read was late coming to the office because of an issue related to his daughter’s health. Dr. Read’s massage therapist, Clarissa (then Ragsdale) Brown, began K.W.’s treatment that day with electric muscle stimulation, moist heat, and massage therapy. Dr. Read then came in, apologized for his tardiness, and began palpating K.W.’s glute muscle in her right buttocks. He worked on the glute muscle into the thigh both over and under her sweatpants. Patient K.W. had pulled down her sweatpants on the right-hand side to show Dr. Read the location of the pain in her buttocks. While he was working on her glute muscle, K.W. believed that Respondent “swiped across my vagina lips a couple of times.” K.W. could not say whether what she felt was actually Dr. Read’s hands or whether it was contact between her body and her sweat pants. Either way, she considered the contact to be accidental. K.W. did not say anything to Dr. Read about this perceived contact. At this visit, K.W.’s pain level had improved. As a result of this improvement, Dr. Read asked K.W. if she would like to begin active strengthening of her lower back on the flexion- extension machine in the rehabilitation center. She indicated her willingness to do so, and the two of them left the examination room and walked upstairs to the rehabilitation room. As they walked up the stairs, Respondent noticed that K.W. was moving slowly going up the stairs. He asked her what was wrong, and K.W. told him that she had a pulling feeling in the back of her right leg. The pulling that K.W. described was a new symptom to Dr. Read, and concerned him. He told her he needed to assess this symptom before they went further. Dr. Read testified that he had K.W. lie face down on one of the examination tables to assess the pulling in her leg. In his assessment, Respondent wanted to differentiate between a sciatic nerve problem from the low back and a hip pathology. He also wanted to rule out a deep vein thrombosis (DVT), which can be quite dangerous. As part of his assessment, Dr. Read performed a Homan’s test to check for DVT. To perform a Homan’s test, K.W. lay prone on the table and Dr. Read rolled up her right pant leg and applied pressure to the calf. He also forcibly flexed the leg and dorsiflexed the ankle. The test involves stretching the calf and squeezing it: if the patient had a DVT, heat would most likely be detected, as well as excruciating pain. Dr. Read also performed a FABRE Patrick test, which is for sacroiliac joint pathology. For this test, K.W. was lying on her back and Respondent flexed the right leg then abducted the right hip joint, while externally rotating the right hip. Dr. Read described it as being like sitting Indian-style, except that the patient is lying on their back. He would then flex one leg up toward the chest and then rotate the leg out, while at the same time applying downward pressure to the knee. If the patient has a hip-joint pathology, he or she would experience sharp pain in the hip as a result of this move. Both the existence of the pulling sensation in K.W.’s leg and the performance of the Homan and FABRE Patrick tests are noted in Dr. Read’s medical records for April 23, 2014. Both tests were negative, although tenderness was noted for K.W.’s right posterior and lateral thigh. Dr. Read had no knowledge that K.W. believed he had touched her inappropriately at the time he dictated and signed his patient records for this visit. During these tests, K.W. thought that, once again, Dr. Read had touched her vaginal area. However, she could not state whether it was her sweatpants or Dr. Read’s hand that actually made contact. She testified that at one point, her sweatpants became uncomfortable and twisted, and were getting pulled and tugged in conjunction with the assessment that Dr. Read was performing. K.W. believed that in all, there were five to six contacts of short duration. K.W. testified that when she and Dr. Read entered the rehabilitation area, she lay on one of the examination tables face down, and Dr. Read began working on her glute muscle again, separated her butt cheeks with his fingers and thumb, and touched her vaginal area a couple of times. She felt a light brushing sensation, but, as noted above, could not say that it was actually his hand that she felt. She still considered the perceived contact as unintentional. K.W. also testified that Dr. Read asked her to turn over, and started working on the lower abdomen down into the groin area and the inner thigh. She testified that he again ran his hand across her vagina, and massaged her upper thigh and leg. She claimed that because her sweatpants had become twisted, when Dr. Read pulled her leg up, her leg came out of her sweatpants. At this point, she interpreted the contact with her vaginal area as intentional. K.W. did not tell Dr. Read that she thought he had touched her inappropriately. She testified that he came around to the front of her and bent over like he was going to kiss her. At that point, she said “no, don’t go there.” According to K.W., she asked him if he was finished, and he said yes, so she sat up, put her leg back into her pants, and engaged in “small talk.” She testified that Dr. Read asked her if she would like to see his office, and she said sure. While she was in the reception area outside his office, she testified that he apologized for coming on to her, and she again told him “not to go there.” After this exchange, she walked out and down the stairs to sign out. Dr. Read, on the other hand, testified that as he was finishing the FABRE Patrick test, K.W. looked startled and got up off the table, saying “don’t go there.” He also was startled by her reaction, and apologized if she felt uncomfortable. He did not recall her leg becoming separated from her sweatpants, but stated that the orthopedic tests that he performed could be uncomfortable, and thinks that the FABRE Patrick maneuver was what she was referencing by her comment. He also did not recall her vagina ever being exposed, but thought if it happened, it would be when she lowered her sweatpants to show him the location of her pain. Dr. Read explained that he apologized to her because he would apologize to any patient who was uncomfortable at any time during an examination. Palpation as part of the assessment of K.W.’s pain would have involved pretty much the entire buttock area, but would not have gotten close to the vagina without a clothing barrier. He denied ever engaging in or attempting to engage in any type of inappropriate conduct or sexual contact, and specifically denied attempting to kiss K.W. Dr. Read further testified that after performing the Homan and FABRE Patrick tests, he told K.W. that in light of her right leg pain, she would not use the flexion-tension machine as planned, but would return to passive treatment. K.W. assented. As they left the rehabilitation room, he went toward his office to unlock it. K.W. asked whether that was his office too, and he replied that it was, and that Ortega rented the whole building. After unlocking the door, he stepped to the side, and K.W. entered the reception area. As he entered his office, he repeated that they were done for the day and he would see her the following day. He stayed upstairs and K.W. went downstairs to check out. K.W. stated that while she was checking out, Ms. Brown made the comment that she did not realize that K.W. was there. Ms. Brown, on the other hand, said that K.W.’s checkout was routine and that K.W. did not say anything to her. Ms. Brown also testified that she saw Dr. Read go to the rehabilitation area with K.W. and that it is not unusual for Dr. Read to take patients to the rehabilitation area. K.W. returned to Ortega for her next scheduled appointment on April 25, 2014. At that time, she told Dr. Read that she did not feel comfortable with him and would not be seeing him any longer. Dr. Read told her that under those circumstances, it was best that she saw someone else, and that Ortega would facilitate sending her records to another chiropractor. Although she told him she was not comfortable, at no time did K.W. ever express to Dr. Read that she thought he had touched her inappropriately. She did not say anything to Dr. Read, his office manager Pam Mobarak, or Clarissa Brown that indicated anything inappropriate occurred at the April 23, 2014, office visit. Approximately one month after the April 23, 2014, appointment, K.W. filed a complaint with the Department. Four months after the appointment, she filed a complaint with the Jacksonville Sheriff’s Office. In conjunction with the Sheriff’s Office’s investigation, K.W. participated in a controlled call in September 2015. During this telephone call, there was an officer on the line giving K.W. questions to ask Dr. Read. The call was answered by Dr. Read’s office manager, Ms. Mobarak, who eventually transferred the call to Dr. Read. During the call, K.W. attempted to get Dr. Read to see her outside of the office. Dr. Read declined to do so. When she asked to see him, he inquired whether she was asking to see him professionally. The transcript of the controlled call does not indicate that Dr. Read ever admitted doing anything inappropriate with respect to K.W. At most, he tells her that it would not be advisable to see her given her pending complaint with the Department. The Sheriff’s Office did not file charges against Dr. Read. This case represents the classic “he said/she said” scenario where the demeanor and credibility of the witnesses is key. No testimony was presented by the Department to establish the scope of chiropractic practice or the proper scope of a generally accepted chiropractic examination. Dr. Read testified that while a woman’s private areas are in close proximity to those areas being examined and adjusted, there would be no reason to touch a woman’s vagina. After hearing the testimony of all of the witnesses presented and comparing the testimony with the written documents admitted into evidence, there is no clear and convincing evidence that Dr. Read touched K.W. inappropriately, whether incidentally or on purpose. K.W. acknowledged that she could not really tell what was touching her. It was just as likely that what she felt was the slide of cloth as her sweatpants moved against her skin. Moreover, her testimony conflicts with not only Dr. Read’s testimony but also Ms. Brown’s. Dr. Read, Ms. Mobarak, and Ms. Brown all testified regarding Ortega’s open-door policy. K.W., on the other hand, could not remember whether the examination room was open or closed. Similarly, the rehabilitation room, while upstairs, was clearly equipped so that multiple patients could be seen at one time. While there was no other person upstairs during K.W.’s treatment in the rehabilitation area, there was nothing to prohibit staff or others from entering or leaving the area. It is inconceivable that Dr. Read would initiate the type of inappropriate touching K.W. described in a rehabilitation room having easy access or an examination room with an open door. While K.W. testified that Ms. Brown commented at check-out that she did not realize K.W. was there, Ms. Brown testified that she observed K.W. going upstairs with Dr. Read, and that it was routine practice for patients to go upstairs for rehabilitation exercise. K.W.’s testimony was not convincing. She considered at least some of the perceived touching as unintentional, and at best could not confirm that it was in fact Dr. Read touching her. While she may have believed something or someone was touching her, her demeanor while testifying about this very intimate type of contact seemed almost casual, as opposed to exhibiting any type of distress or concern with the subject matter. She did not appear to have any real concern about much of the incident. Similarly, her testimony that she engaged in “small talk” with Dr. Read after his examination of her in the rehabilitation room is not consistent with what would be expected from a patient who believes that her physician has just touched her inappropriately or made a pass at her. Dr. Read’s testimony, on the other hand, was direct, consistent, and consistent with his medical records, which were dictated and signed at a time when he had no idea that K.W. perceived that he had touched her inappropriately. His description of the events is simply more plausible than K.W.’s and more believable. It is found that Dr. Read did not, accidentally or otherwise, touch K.W.’s vagina during his examination of her on April 23, 2014. It is found that Dr. Read did not engage or attempt to engage K.W. in sexual activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2016. COPIES FURNISHED: Kevin Mercer, Esquire Wicker Smith Suite 2700 50 North Laura Street Jacksonville, Florida 32202 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Candace Rochester, Esquire Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Anthony B. Spivey, DBA, Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 (eServed)
The Issue The issue for consideration in this matter is whether the Respondent's license as a chiropractic physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times relevant hereto, Joseph S. Maddox was licensed by the Board of Chiropractic to practice chiropractic in Florida. His Florida license number is CH0003204 (Exhibit 10). C.G. was a patient of Respondent during the period 1984-1988. In 1984, she presented to Respondent with pain in the coccyx. When external manipulation was unsuccessful in restoring the alignment in the tail bone, Respondent performed the adjustment through the vagina. Six months later, another internal coccyx adjustment was made, this time rectally. Both of these internal adjustments are accepted chiropractic techniques for coccyx realignment, but the rectal procedure is preferred because of fewer layers of tissue between inserted finger and coccyx and proximity to the coccyx. With respect to C.G., it is alleged that, for the purpose of attempting to engage the patient in sexual activity outside the scope of practice or examination, Respondent manually penetrated C.G.'s vagina, penetrated C.G.'s vagina with a vibrator device, manipulated C.G.'s breasts, asked the patient questions regarding her sex life and activities, and these activities occurred when Respondent was in a closed room with C.G. In 1986, C.G. had mammo-plasty reduction surgery. Before this surgery, she asked Respondent if the operation would alleviate her back pain. Respondent then examined her breasts and manipulated them. No evidence was presented that Respondent ever suggested having sex with C.B. Following this surgery there was some seepage from the wound, and while undergoing chiropractic treatment by Respondent, C.G. asked him to look at the wound. This is the occasion Respondent is alleged to have manipulated C.G.'s breasts. On several occasions, Respondent used a vibrator when giving chiropractic treatment to C.G. The vibrator was described by all witnesses as a portable machine with two handles and a rectangular vibrator pad approximately 10 inches by 4 inches. Although the Administrative Complaint alleges Respondent used the vibrator inside the patient's vagina, C.G. testified that during the course of the vibrator treatment Respondent allowed the vibrator to rest on her vaginal area, and he moved the vibrator over the vaginal area. C.G. also testified that Respondent used the vibrator for too long a period which was painful at the time and left her sore after the treatment was over. Between August 1987 and April 1988, C.G. leased space in Respondent's office facility in which she conducted her mental health counseling. During this period, she became close friends with Sara Chasse' who worked in Respondent's office for some three years before she was dismissed by Respondent. While occupying space at Respondent's office, C.G. used Respondent's staff to make appointments, answer the phone and perform other clerical services. C.G. is also an accredited professional astrologer (Exhibit 2) and prepared natal charts for Ms. Chasse' and Respondent's wife. K.T. first came to Respondent for an adjustment in late 1984. She has gone to chiropractors for thoracic problems dating back to childhood. In fact, K.T. has worked in a chiropractic setting for some 17 years and had formed her own company, Chiro Girls, to provide trained personnel to be employed by chiropractic clinics. At her first visit to Respondent's clinic, K.T. discussed with Respondent her ideas of how a chiropractic clinic should be run. K.T. was then employed to conduct a time motion study of the clinic operations and thereafter was employed under contract with Respondent as clinic director. K.T. considered her function at the clinic was to educate and motivate the clinic's staff. Friction developed between K.T. other employees and patients; and the contract was mutually dissolved some eight months later and well short of the year for which the contract was entered into. K.T. related a long history of menstrual cramps to Respondent which he treated with a vibrator. Respondent also queried K.T. regarding her sex life. Although K.T. deemed such questions inappropriate, a sexual history is appropriate to ascertain when treating female patients presenting symptoms of low back pain and dysmenorrhea (Exhibit 12). Further, use of a vibrator is appropriate when treating trigger points that can greatly intensify dysmenorrhea (Exhibit 13). Although K.T. testified that Respondent used a small, hand-held vibrator which he moved over her vaginal area and inserted in her vagina to induce her to climax, Respondent emphatically denies this; and nearly all other witnesses testified that the only vibrator used in the clinic was the large vibrator described in Exhibit 6. K.T.'s testimony that the vibrator treatment was very painful is more consistent with the use of the standard vibrator than with a smaller vibrator that could be inserted in a vagina. Accordingly, I find Respondent did not insert a vibrator into K.T.'s vagina. A.M.T. was treated by Respondent in 1980 when she was 15 years old. Initially she had back problems which were treated by adjustment and spine realignment. Between June and September 1980, A.M.T. worked in Respondent's clinic part-time. During this period A.M.T. developed coccygeal pain, and realignment of the coccyx was accomplished internally through the rectum. A.M.T. testified that Respondent rubbed her clitoris to relax her and discussed sexual techniques with her. She also testified Respondent's wife was in the treatment room while she was receiving therapy. A.M.T. thought the treatment she received was normal until she came in contact with a social services counselor in 1986 and then decided she had been abused by Respondent. When school started in September 1980, A.M.T. was unable to work at Respondent's clinic and get to school on time. Her need for treatment ended when she stopped working at the clinic. Respondent denies he rubbed A.M.T.'s clitoris or engaged in any unethical treatment of A.M.T; however, Respondent testified that he discussed sex with A.M.T. and her boyfriend at the request of A.M.T.'s mother. The mother denies asking for such a consultation with her daughter, and the boyfriend (now husband of A.M.T.) denies ever attending such a meeting. Since this alleged incident occurred approximately 10 years ago it is likely that none of the participants precisely recall what happened, but is more likely that Respondent's version of the sexual conversation with A.M.T. is inaccurate. However, Respondent's and his wife's attempts to justify sexual discussion with A.M.T. on the totally discredited basis that such discussion was requested by A.M.T.'s mother, leads to the conclusion that these discussions and treatments failed to comply with generally accepted standards of chiropractic treatment. Respondent treated M.W. with usual Chiropractic techniques for approximately one year for pain associated with muscular skeletal chassis stemming from a work-related back injury. At this time, Respondent's wife, Marty, was enrolled in massage school. After a discussion among the involved parties, it was agreed that Marty would practice massage on M.W. with Respondent present to point out the muscular skeletal anatomy. These treatments took place in Respondent's clinic in the evening well after the clinic had closed and were given at no cost to M.W. M.W. told Respondent that she experienced pain while having sex with her husband. He suggested vibrator treatment would help in this regard, and M.W. purchased a vibrator. M.W. testified that the massage therapy started on her neck and moved down her back and legs while she lay nude on the table. It is undisputed that the last evening M.W. received a massage she was alone in the clinic with Respondent. Marty was delayed and did not get to the clinic, so the massage was started by Respondent. During this massage a hand-held vibrator was used. M.W. testified Respondent moved it over her vaginal area and inserted the vibrator in her vagina. Respondent contends that M.W. requested he so use the vibrator on her. Both indicate that the other was the aggressor. Respondent acknowledged that he became sexually excited and testified M.W. put her hand on his penis. M.W. testified that Respondent put her hand on the front of his pants, and when he did so she got off the table, dressed and departed, never to return. Respondent testified that when M.W. grabbed him he realized the situation was getting out of hand and he left the room. When he returned, M.W. was dressed and was leaving. Even if Respondent's version of the incident is accepted as true, he voluntarily (if not intentionally) placed himself in an indefensible position and a factual situation that can lead only to the conclusion that he attempted to engage M.W. in sexual activity outside the scope of the practice of chiropractic. T.P. worked in Respondent's clinic for three months some five years ago and received chiropractic treatment from him. While undergoing activator adjustment the vibrator treatment approached the vaginal area, but T.P. inferred no sexual overtones in the procedure. When treated by Respondent she wore undergarments and considered his treatment similar to the other four or five chiropractors with whom she has worked. Sara Chasse' was a patient of Respondent for two years before being employed by him in 1984-1985 and again in 1986 until discharged in 1989. During her employment, she also received chiropractic treatment from Respondent. Chasse' was the back office assistant and was supposed to be in the room with Respondent when he was treating female patients. As the back office assistant she overheard the Respondent ask female patients questions about their sex life. No allegations were made in the Administrative Complaint regarding unprofessional or unethical treatment of Chasse' by Respondent; accordingly, most of her testimony regarding such treatment is irrelevant. Chasse' was a close friend of C.G. and M.W. and knew K.T. and T.P. She discussed with them the treatment they received from Respondent. Chasse' filed a complaint with the Department of Professional Regulation against Respondent and provided a list of patients treated by Respondent which included those who testified in these proceedings. All of the complaining witnesses testified that Respondent had them stand in front of a full length mirror clad only in bra and panties so he could demonstrate to them the results of the adjustments made during their treatment. They also testified that while they were in the room alone with Respondent the door was closed and sometimes locked. Other witnesses denied the door leading into an examination room was ever locked. Petitioner's expert witness opined that menstrual cycle problems are best left for treatment by an obstetrician/gynecologist; the use of a vibrator is not appropriate to relieve menstrual cramps; that it is not relevant to chiropractic when female patients last had intercourse; and that using a vibrator over and in the vagina, rubbing patient's clitoris, discussing your own sexual activities with patients, and having patients stand nude before a full length mirror constitutes a failure to practice chiropractic at a level of care, skill and treatment which is recognized by a reasonable prudent chiropractic physician as being acceptable under similar circumstances and/or constitutes an attempt to engage the patient in sexual activity outside the scope or practice or the scope of generally accepted examination or treatment of the patient. Respondent's expert witness opined that when a female patient presents with low back pain, a reasonable inquiry by the chiropractic physician would be the sexual practices of the patient; that the questions shown in Exhibit 12 are appropriate; and it is appropriate for a chiropractor to treat dysmenorrhea pain, and Exhibit 13 accurately depicts the trigger points; that use of vibrator is appropriate to treat the lower abdominal area of the patient; that there is no fixed standard in the practice of chiropractic whether the door to the examining room is open or closed (but not locked), nor is there a fixed standard of practice regarding the chiropractor having some staff member present when a patient is being examined. Both expert witnesses agreed that prudence demands the chiropractic physician have a staff member present in the examining room when sensitive area's of the patient are being manipulated and that neither intervaginal massage nor clitoral stimulation is an appropriate chiropractic procedure.
Recommendation It is recommended that Joseph S. Maddox be found guilty of Counts II, III and V, and not guilty of all other charges. It is further recommended that his license be suspended for a period of six (6) months, that he pay an administrative fine of $5000 and, upon completion of the suspension, be placed on probation under such terms and conditions as the Board deems appropriate, for a period of two years. ENTERED this 7th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX Proposed findings submitted by the parties are generally accepted. Those not included in H.O.'s findings or not rejected as noted below, were deemed immaterial or unnecessary to the conclusions reached. Petitioner's Proposed Findings Rejected 10. Rejected. 12. Proposed finding that door was locked is rejected. 15. First sentence rejected as irrelevant to the charges. 21-24. Accepted as the testimony of K.T. insofar as inconsistent with H.O.'s 12, those findings are rejected. 27. Same as 15. 30. Rejected insofar as inconsistent with H.O. #17. Same as 15. Rejected as irrelevant. 40-41. Accepted only insofar as consistent with H.O. #20. 58. Rejected as irrelevant. 59-73. Are generally rejected as irrelevant and hearsay, insofar as inconsistent with H.O. #21 and not merely corroborating testimony of other witnesses whose treatments by Respondent were alleged to violate prescribed chiropractic standards. Respondent's Proposed Findings Rejected 6. Last sentence rejected. Other witnesses testified to use of small hand held vibrators. First sentence rejected. See H.O. #9. Rejected. K.T. testified that a small hand held vibrator was used on her the one time she was treated with a vibrator. She also testified that the treatment was very painful which would lead one to believe the large (10"x4") vibrator was used on pressure points. Rejected insofar as the improper touching of A.M.T.'s vaginal area is concerned. Rejected insofar as inconsistent with H.O. #16. Rejected. Rejected only insofar as it concludes that the uncalled for discussion of sexual techniques with a 15-year old female patient does not constiti1ite an attempt to engage the patient in sexual activity or malpractice. Last sentence is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Grover Freeman, Esquire Suite 500, 4600 Cypress Street Tampa, FL 33607 Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether Respondent is guilty of violating Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Jeffrey L. Katzell, M.D. (Dr. Katzell), is and has been at all material times to this proceeding a physician, licensed in the State of Florida by the Petitioner, Agency for Health Care Administration (AHCA). Dr. Katzell was issued license number ME 0050379. Dr. Katzell is a board certified orthopedic surgeon. He entered the private practice of orthopedic surgery in Palm Beach County in 1987. Prior to the allegations which are the subject of this proceeding, Dr. Katzell has never been the subject of a medical malpractice complaint or any form of disciplinary action by the Board of Medicine in any state. PATIENT T.B. T.B. is the female patient referred to in Counts 1-3 of DOAH Case No. 93-7122, DPR Case No. 92-3917. From December 12, 1991, through February 6, 1992, Dr. Katzell treated T.B. who was at that time 24 years old. Her chief complaints were of pain in her back, neck, wrist and chest as a result of trying to catch herself from falling while walking down some stairs. She complained of chest pain that felt like a band around her chest. She had pain when breathing. On the December 12, 1991, visit, a female medical assistant asked T.B. to disrobe and put on an examining gown which opened down the back. T.B. wore her panties under the gown and no bra. Dr. Katzell examined T.B. in the presence of a female medical assistant. As part of his examination, he palpated T.B.'s sternum and examined her ribs by placing his left hand through the armhole of the examining gown and his right hand on her back. Dr. Katzell moved the fingers of his left hand in different locations on her chest and asked T.B. if it hurt in those areas. During the examination, the palm of Dr. Katzell's hand touched the nipple of T.B.'s breast. It is possible for a physician to examine a female patient's sternum and ribs without touching her nipples but it is also possible that a physician could accidently touch the nipple of the breast while performing such an examination. It was appropriate for Dr. Katzell to examine T.B.'s sternum and ribs, given the nature of her complaints. It was not below the standard of care nor does it constitute sexual activity or sexual misconduct for an orthopedic surgeon to have physical contact with the breast in the manner described by T.B. during the course of performing an examination of the chest. On January 23, 1992, T.B. returned to Dr. Katzell for a follow-up examination. She was complaining of pain in the area of the left sciatic joint which is located in the buttock. For the examination she was wearing a T-Shirt, panties, and a bra underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her a cortisone shot in her buttock. She removed her panties. Dr. Katzell gave her an injection of cortisone in her buttock while she lay face down on the examining table. He left the room for a short period of time. When he returned, he rubbed the medication in to diffuse the medicine. Then he asked her to turn over and he began to manipulate her legs to see if the shot had worked. The examination includes flexing and extending the legs, as well as abduction (spread eagle) and adduction (legs crossed). T.B. did not have any panties on while he was putting her legs in different positions and her genital area was exposed. It was appropriate for Dr. Katzell to check T.B.'s range of motion, but it was inappropriate for him to perform the examination while the lower half of her body, including her genitalia were exposed. To have performed the range of motion test while the patient's genitalia was exposed was below the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. On February 6, 1992, T.B. returned for a follow up visit, continuing to complain of low back pain related to the sciatic joint. Again T.B. was asked to disrobe and put on an examining gown. She wore two tank tops, a bra, and panties underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her another cortisone shot. She removed her panties. Another man was present when Dr. Katzell gave T.B. the injection. The man and Dr. Katzell left the examining room after the injection was administered. Dr. Katzell returned a short time later and told T.B. that he probably needed to manipulate the shot into the buttock. He opened the back of her gown and started to rub her buttock with both hands. Cortisone is a non-absorbable medication. The standard of care for orthopedic surgery recognizes that it is helpful and appropriate to massage the area of the injection to diffuse the medication. After Dr. Katzell massaged T.B.'s buttocks, he took his right hand and pulled her leg open. Dr. Katzell then made a sweeping motion with his hand from her vagina to her rectum. T.B. jumped to the side and pulled the gown closed. She asked him why he was giving her a shot in the buttock when it was her hip that hurt. Dr. Katzell told her that if she did not like it that she could come back for more. T.B. started to cry. The touching of T.B.'s genitalia from her vagina to her rectum was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching was sexual misconduct in that the touching was a violation of the patient-physician relationship through which Dr. Katzell intentionally touched the vagina of T.B. and such touching was outside the scope of generally accepted treatment and examination of the patient. T.B. left Dr. Katzell's office and went to her workers' compensation attorney complaining of her treatment from the doctor. T.B. told her husband what had happened and they called the police. As a result of the above-described events T.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28364-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.B. and the Court adjudicated Dr. Katzell guilty. T.B. has filed a civil action for monetary damages against Dr. Katzell. PATIENT A.F. A.F. is the female patient referred to in Counts 4-6 of the Administrative Complaint in DOAH Case No. 93-7122, DPR Case No. 92-3917. A.F. was involved in a head on automobile accident on August 30, 1991. At that time she was 30 years old. After the accident she was treated by Dr. Michael Nathanson, a chiropractor. He referred her to Dr. Katzell for a complete orthopedic examination. Dr. Katzell first saw A.F. on October 9, 1991. She was complaining of pain in her sternum, sciatic pain, neck pain, and pain in the middle and low portion of her back. A.F. told Dr. Katzell that she had severe pain in sternum but that she did not have any bruises on her breasts. Her chiropractor had advised her that she had cracked two ribs. During Dr. Katzell's first examination of A.F. no other persons were present in the room. A.F. was wearing an examining gown, panties, and a bra. While A.F. was standing, Dr. Katzell pulled down her examining gown and removed her bra straps from her shoulder, exposing her sternum and breasts. She tried to pull the gown back up but he pushed it back down. Given the nature of A.F.'s complaints relating to her sternum and ribs, it was appropriate for Dr. Katzell to examine the sternum, to palpate the costochondral junction where the ribs meet the sternum, and to palpate the ribs. Dr. Katzell palpated the ribs and the costochondral junction during his examination. While he was examining her, his fingers did come in contact with A.F.'s breasts. The standard of care is not violated when a physician's hand comes in contact with the breast during an examination of the anterior chest such as was performed by Dr. Katzell. By touching A.F.'s breasts, Dr. Katzell did not engage in sexual activity. After her visit with Dr. Katzell, A.F. told Dr. Nathanson that she did not think that Dr. Katzell's examination had been appropriate. On October 29, 1991, A.F. returned to Dr. Katzell for a follow-up visit. She was complaining of hip pain and sciatic pain, with a pain in the crease of her leg where the elastic of her panties would be. She put on the examining robe and left on her panties and bra. No attendant was present during the examination. A.F. was standing while Dr. Katzell was examining her. He put his thumbs underneath her panties and palpated the inguinal crease (where the elastic of the panties would be located). As he was examining her, he put his right thumb in the crease in the vaginal area across her clitoris and went down underneath in the vaginal area. She told him that it did not hurt there and he went back up across the same area. Dr. Katzell's touching of A.F.'s clitoris and her vaginal area was unjustified and inappropriate. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. The touching was also sexual misconduct. On November 11, 1991, A.F. returned to see Dr. Katzell for the results of her MRI test. Dr. Katzell asked her twice to put on the examining robe but she refused to do so. A.F. called Petitioner and filed a complaint against Dr. Katzell. Later A.F. instituted a civil action against Dr. Katzell. Additionally, as a result of the above-described events A.F. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number 92-28366- MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of A.F. and the Court adjudicated the Respondent guilty. PATIENT BB Patient B.B. is the female patient referred to in Counts 7-9 of the Administrative Complaint in DOAH Case No. 93-7122 and DPR Case No. 92-3917. B.B. was a nurse in a hospital where Dr. Katzell performed surgery. In the summer of 1990, she began experiencing pain in her left hip, radiating to her left knee and foot and causing her to limp. Dr. Katzell noticed her limp and told her that a cortisone shot could help. She agreed to the injection. They went to the cast room in the emergency room of the hospital. Dr. Katzell asked her to put on an examining gown while he stepped out of the room. She complied. Dr. Katzell gave B.B. an injection and told her that it was not necessary for him to see her in his office. He did not charge B.B. for the treatment. It is not unusual for physicians to perform courtesy examinations for the nurses. B.B. experienced some minimal relief, but the pain returned in a couple of weeks. Dr. Katzell suggested another injection. They went to the cast room where the first examination had taken place. On the way to the cast room, B.B. told Dr. Katzell that she was also experiencing pain in her tailbone that resulted from an accident she had while giving childbirth years before. He told her that he would need to do a vaginal examination to determine where to place the shot in her tailbone. He performed a vaginal examination by inserting his fingers into her vagina. He did not perform a rectal examination. No one else was present during Dr. Katzell's examination of B.B. Vaginal examinations are not used in the diagnosis or treatment of back pain, coccydynia (pain in the tailbone) or to locate a favorable injection site for the treatment of these conditions. The giving of the vaginal examination fell below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The vaginal examination also constituted sexual misconduct. B.B. wrote a letter to Petitioner concerning Dr. Katzell's examination but she was not specific about the nature of the complaint. She was later contacted by one of Petitioner's investigators. As a result of the above-described events B.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number, 92-12233-CF. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of B.B. and the Court adjudicated Dr. Katzell guilty. PATIENT D.B. Patient D.B. is the female patient referred to in Counts 1-3 of the Administrative Complaint in DOAH Case No. 93-7123 and DPR Case No. 92-14422. D.B. first saw Dr. Katzell on May 16, 1991. She was complaining of instability with her left knee. At the time she was 24 years old. D.B. had had a patella tendon anterior cruciate ligament reconstruction in 1986. She saw Dr. Katzell again on June 13, 1991 and July 9, 1991. Dr. Katzell recommended arthroscopic anterior cruciate ligament reconstruction on her left knee because of a rupture of the anterior cruciate ligament. On July 15, 1991, D.B. was admitted to J.F.K. Medical Center, where Dr. Katzell performed surgery on her left knee. After the surgery, D.B.'s left leg was bandaged from the groin area to half way down her calf. On one of his hospital post-operative visits, Dr. Katzell came to check D.B.'s dressing. D.B. was wearing a hospital gown and no underpants, her left leg was in the air in a continuous motion machine, and she was on a bedpan when Dr. Katzell came into her room. While Dr. Katzell was checking her dressings, he rubbed his hand down her crotch. There was no medical necessity for rubbing across the crotch area of D.B. when Dr. Katzell changed her dressing while she was in the hospital. D.B., who was accompanied by her mother, saw Dr. Katzell in his office on July 26, 1991. He removed the staples. D.B. next saw Dr. Katzell on August 16, 1991. She put on an examination gown and kept on her T-shirt, bra, and panties underneath the gown. Dr. Katzell performed a range of motion test, which required D.B. to lie on the examining table, bend the leg at the knee while the leg was raised in the air, and gradually lower the leg. During the examination, Dr. Katzell placed his hand between her legs and slid it down the middle of the vaginal area from top to bottom. Dr. Katzell next saw D.B. in his office on September 13, 1991. D.B. was dressed in an examination gown with a shirt, panties and bra underneath the gown. Dr. Katzell performed another range of motion test and again touched her in her vaginal area, down the middle of her crotch from top to bottom. On October 11, 18, November 19, and December 19, 1991, D.B. returned for follow-up visits. On each visit, D.B. removed her shorts and put on an examination gown. During each visit Dr. Katzell measured her leg near the groin area for atrophy as she stood up with her back to him as he was sitting on a stool. While he was measuring during each visit, he briefly rubbed his hand between her legs in her crotch. On January 17, 1992, D.B. went to see Dr. Katzell at his office. She was wearing bike shorts and a sweater. She had intentionally worn bike shorts because she felt that the doctor could measure over the shorts and there would be no necessity for removing her shorts. The bike shorts had a built-in pantie so D.B. did not wear any additional underpants. Dr. Katzell asked her to remove the bike shorts and the sweater and put on a gown, explaining that he could not measure over the spandex of the bike shorts. It would not have been medically appropriate to measure the leg over the spandex because the bike shorts compress the muscles of the upper leg. D.B. removed her shorts and sweater and put on the gown, which left her wearing only the gown and a bra. Dr. Katzell performed a range of motion test and measured her leg for atrophy. When he was measuring her leg, he touched her in her vaginal area as he had done previously. There was no medical necessity that required Dr. Katzell to touch D.B. in her vaginal area while he was performing range of motion tests and measuring her leg for atrophy. The touching of D.B. in her crotch while she was in the hospital and during her subsequent office visits was inappropriate and fell below the level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constituted sexual misconduct. As a result of the above-described events, D.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of D.B. and the Court adjudicated Dr. Katzell guilty. D.B. has made a civil claim against Dr. Katzell related to the above- described incidents. PATIENT T.C. Patient T.C. is the female patient referred to in Counts 4-6 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. Dr. Katzell treated T.C. for chronic knee derangement from December 4, 1987 to November 18, 1991. During that time, he operated on her knee two times for internal derangement of the knee. On March 12, 1991, T.C. went to Dr. Katzell complaining of pain and swelling in her right knee. She also had right sided low back pain radiating into her right hip. Dr. Katzell examined her right hip and palpated the area in the inguinal crease. He moved her underpants to one side, exposing her vagina while he was palpating the inguinal crease. Dr. Katzell did not touch the vagina during the examination. Depending on the cut of T.C.'s underwear it may have been necessary to move her underwear to one side in order to palpate the inguinal crease. Dr. Katzell's actions on March 12, 1991, did not constitute sexual misconduct nor was it below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On November 18, 1991, T.C. went to Dr. Katzell's office for a follow- up visit, complaining of continued pain in her right knee. Dr. Katzell asked her to disrobe and put on an examination gown. She complied, leaving on her underwear. During the examination of her knee, Dr. Katzell began to rub T.C. above her knee and on the inside of her right thigh. He touched her vaginal area over her underwear with his fingers. She moved forward when he touched her and he removed his hand. There was no medical necessity to touch the vaginal area of a patient during the examination of a knee. The touching of T.C.'s genitalia during the knee examination was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constitutes sexual misconduct. Following the knee examination of November 18, 1991, T.C. immediately left Dr. Katzell's office and never returned. As a result of the above-described incident, T.C. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28365-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.C. and the Court adjudicated the Respondent guilty. T.C. has filed a lawsuit against Dr. Katzell seeking monetary damages. PATIENT S.M. Patient S.M. is the female patient referred to in Counts 7-9 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. On July 22, 1991, S.M. went to see Dr. Katzell for an independent medical evaluation relating to a slip and fall at her workplace. S.M. was complaining of upper and lower back pain, bilateral hip pain, mild knee pain and some right shoulder discomfort. S.M. was given an examination gown to wear. She put on the gown, leaving on her slip, bra and g-string panties. Dr. Katzell began to examine her and told her she would have to remove her slip. He left the room while she did so. There was no attendant in the room during the examination. She lay on the examining table and he stretched her legs at 90 degree angles. He had his hand underneath the gown, between her legs and on top of her vagina. He would rub the crease area between S.M.'s thigh and pubic area and move his hand across the vaginal area as he went from one to side to the other. There was no medical purpose for Dr. Katzell to touch S.M.'s vaginal area during his examination. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. The touching also constituted sexual misconduct. As a result of the above-described incident, S.M. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of S.M. and the Court adjudicated him guilty. S.M. has filed a civil action against Dr. Katzell for monetary damages. MITIGATION In 1992, after the complaints surfaced concerning the above-referenced patients, Dr. Katzell voluntarily stopped his practice and sought help through the Physicians Recovery Network (PRN). He entered into a five-year supervisory contract with PRN and was participating in the contract at the date of the hearing. He agrees to remain under contract with PRN as long as necessary to demonstrate that he is safely practicing medicine. Dr. Katzell was in good standing with his agreement with PRN and had no reported problems as of the date of the final hearing. PRN referred Dr. Katzell to the Behavior Medicine Institute in Atlanta, Georgia, where he underwent an out-patient cognitive behavior type of treatment for sexual problems. The treatment program is headed by Dr. Gene Abel. The recidivism rate for physicians treated in Dr. Abel's program is 0 percent. As a result of the charges made by the six patients, Dr. Katzell has made changes in his orthopedic practice. These changes in methods include always examining a female patient in the presence of a chaperon or attendant and explaining to the patient the need for any examinations which could be perceived as being in close proximity to a private area. When patients are to receive a cortisone injection, his female office staff will drape the area outside the presence of Dr. Katzell and he will return simply to administer the injection in the presence of his attendant. The medication will be massaged into place by a female attendant and not by Dr. Katzell. There have been no complaints in the three years since Dr. Katzell has made these changes in his orthopedic practice. Over twenty witnesses testified at the final hearing concerning Dr. Katzell's practice of medicine since the incidents involving the six female patients. The witnesses found that in their dealings with Dr. Katzell they found him to be a capable, professional and caring physician. Dr. Katzell was interviewed, tested, and evaluated by two forensic psychologists, Theodore Blau, Ph.D. and Florence Kaslow, Ph.D. Based on their evaluations, it is their opinion that Dr. Katzell can safely practice medicine in the future and that Dr. Katzell's fear of loss of the ability to practice medicine in the future is so overwhelming that he will not be expected to exceed the boundaries of acceptable behavior that the law or ethics require of him as a physician. The evidence did not establish that the six patients suffered any physical or severe permanent psychological harm. On the advice of counsel, Dr. Katzell entered pleas of nolo contendere to battery on the six patients. When he did so it was his understanding that would not have any significant impact with regard with his license to practice medicine. In order to get the State Attorney to agree to a plea agreement, Dr. Katzell opted to forego the taking of any depositions in the criminal case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jeffrey L. Katzell, M.D., violated Section 458.331(1)(c), Florida Statutes, in Counts 1, 2, 3, 4, 5, and 6 of the Administrative Complaint in DOAH Case No. 93-7124, dismissing Count 7 of the Administrative Complaint in DOAH Case No. 93-7124, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(t), Florida Statutes in Counts 3, 6, and 9 in the Administrative Complaint filed in DOAH Case No. 93- 7122 and in the Administrative Complaint filed in DOAH Case No. 93-7123, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7123, dismissing Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7123 as not providing a separate ground for disciplinary action given the findings that Dr. Katzell violated Section 458.329 and thus, Section 458.331(1)(x), Florida Statutes. It is recommended that the following penalty be imposed: Suspension of the license of Dr. Katzell for six months; Imposition of an administrative fine of $2,000 for each violation for a total of $36,000; Five years probation following the suspension of the license; All examinations of female patients by Dr. Katzell be made in the presence of a female chaperon, and this shall be a permanent requirement of his medical license; and Dr. Katzell is to remain under a supervisory contract with the Physician Recovery Network until the conclusion of his probationary period. DONE AND ENTERED this 19th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 93-7122, 93-7123, and 93-7124 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraph 10 (there were two paragraphs numbered 10): Accepted in substance. Paragraphs 11-24: Accepted in substance. Paragraph 25: Rejected as not supported by clear and convincing evidence. Paragraphs 26-27: Rejected as unnecessary because incidents related to the December 30 visit were not alleged in the Administrative Complaint. Paragraph 28: Accepted in substance except that the undergarment that Dr. Katzell asked her to remove was her panties. Paragraphs 29-37: Accepted in substance. Paragraph 38: Accepted in substance except as to the date on which he began treatment for chronic knee derangement. Paragraphs 39-54: Accepted in substance. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as not supported by clear and convincing evidence. Paragraphs 57-65: Accepted in substance. Paragraph 66: Accepted in substance except that in relation to the criminal information pertaining to A.F., Dr. Katzell entered a plea of nolo contendere to battery on the person of A.F. not T.B. Paragraphs 67-70: Accepted in substance. Paragraph 71: Rejected because the allegations were not part of the Administrative Complaint Paragraphs 72-77: Accepted in substance. Paragraphs 78: Rejected because the allegation was not part of the Administrative Complaint. Paragraphs 79-81: Accepted in substance. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 2: The first sentence and the first half of the second sentence are rejected as unnecessary. The remainder is accepted in substance. Paragraph 3: Accepted in substance. Paragraph 4: Rejected as unnecessary detail. Paragraphs 5-7: Rejected as unnecessary detail. Paragraphs 8-11: Rejected as subordinate to the findings that were actually made. Paragraphs 12-15: Rejected as unnecessary detail. Paragraph 16: Rejected to the extent that it implies that all of Dr. Katzell's actions were in compliance with the orthopedic standard of care. Accepted in substance to the extent that the medical records alone do not show the violations charged in the administrative complaints. Paragraphs 17-18: Accepted in substance. Paragraph 19: The first sentence is rejected to the extent that the patient indicated that she had fallen. She indicated that she caught herself from falling as she was walking down the stairs. The remainder is accepted in substance. Paragraphs 20-24: Accepted in substance. Paragraphs 25-26: Rejected as unnecessary. Paragraphs 27-30: Accepted in substance. Paragraphs 31-37: Rejected as unnecessary because the actions of Dr. Katzell during the December 30 visit were not alleged in the Administrative Complaint. Paragraph 38-39: Accepted in substance. Paragraph 40: Rejected as unnecessary detail. Paragraphs 41-42: Accepted in substance. Paragraphs 43-44: Rejected as unnecessary detail. Paragraph 45: The first two sentences are rejected as unnecessary detail. The last sentence is accepted in substance. Paragraphs 46-48: Accepted in substance. Paragraph 49: The first sentence is rejected as constituting argument. The second sentence is rejected as unnecessary detail. Paragraph 50: The portion of the sentence dealing with sexual activity is accepted in substance as it relates to the January 23 visit but the portion dealing with practice below the standard of care is rejected as not supported by the evidence. Paragraphs 51-53: Accepted in substance. Paragraph 54: Rejected as unnecessary detail. Paragraph 55: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 56-58: Accepted in substance. Paragraph 59: Rejected as constituting argument. Paragraph 60: Rejected as irrelevant. The inappropriate touching of the vagina is sexual activity and it is irrelevant whether they talked about sexual topics or whether either person was sexually aroused by it. Paragraph 61: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 62: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 63: The first sentence is rejected as not supported by the evidence. Having judged the credibility of the witnesses, the second sentence is rejected. Paragraphs 64-71: Accepted in substance. Paragraph 72: Rejected as unnecessary. Paragraph 73: The first sentence is accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 74-75: Rejected as subordinate to the facts found. Paragraphs 76-78: Accepted in substance. Paragraph 79: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 80-85: Rejected as unnecessary because the Administrative Complaint does not contain allegations related to this portion of the October 9 visit. Paragraphs 86-87: Accepted in substance. Paragraph 88: Rejected as unnecessary detail. Paragraph 89: Accepted in substance. Paragraph 90: Rejected as unnecessary detail. Paragraph 91: The first half of the sentence is rejected as unnecessary detail. The last half of the sentence is accepted in substance. Paragraph 92: Rejected to the extent that it implies that Dr. Katzell did not touch A.F.'s clitoris and her vaginal area. Paragraphs 93-95: Rejected as irrelevant because it was the touching of the clitoris and the vaginal area which was at issue not the palpating of inguinal crease or the touching of the pubic bone. Paragraph 96: The first sentence is accepted in substance. The second sentence is rejected as irrelevant since the complained touching was not in close proximity but was in the vagina. Paragraph 97: Rejected as irrelevant. Paragraph 98: Rejected as constituting argument. Paragraph 99: Accepted in substance. Paragraph 100: Having judged the credibility of the witnesses, this paragraph is rejected. Paragraph 101: Rejected as not supported by the evidence. If the clitoris is covered by the labia, it is uncovered when a person sticks his thumb in the vaginal crease and runs his thumb down the crease and back up again. Paragraph 102: The first sentence is rejected as not supported by the evidence. The last sentence is rejected as irrelevant. Paragraphs 103: Rejected as irrelevant. Paragraph 104: Accepted in substance. Paragraphs 105-107: Rejected as irrelevant. Paragraph 108: Rejected as constituting argument. Paragraph 109: Accepted in substance. Paragraph 110: Rejected as not supported by the evidence. Paragraphs 111-115: Accepted in substance. Paragraphs 116-122: Rejected as unnecessary because the Administrative Complaint does not contain allegations concerning the touching of B.B.'s breasts. Paragraphs 123-127: Accepted in substance. Paragraphs 128: Rejected as unnecessary detail. Paragraphs 129-131: Rejected as irrelevant since the finding is that a vaginal examination was performed. Paragraph 132: Rejected as constituting argument and subordinate to the finding that Dr. Katzell did perform a vaginal examination. Paragraph 133: Rejected as unnecessary detail. Paragraph 134: Rejected as subordinate to the finding that he did perform a vaginal examination. Paragraph 135: Rejected as irrelevant as to whether she felt that he was engaging in sexual activity. Paragraph 136: Rejected as not supported by the greater weight of the evidence that the pressure that B.B. felt was consistent with a rectal examination. Paragraphs 137-138: Rejected as subordinate to the facts actually found. Dr. Koulisis's statement corroborated B.B.'s testimony that a vaginal examination was performed. Paragraph 139: Rejecting as constituting argument. Paragraph 140: Rejected as irrelevant. Paragraph 141: Rejected as constituting argument. Paragraph 142: Accepted in substance. Paragraphs 143-144: Rejected as irrelevant. There was no showing that Dr. Katzell was prejudiced by the loss of the letter. Paragraph 145: Accepted in substance. Paragraph 146: The first and third sentences are accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 147: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 148: Rejected as unnecessary detail. Paragraph 149: Accepted in substance. Paragraph 150: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 151-153: Rejected as constituting argument and subordinate to the facts actually found. Dr. Katzell did see D.B. in the hospital on at least one occasion and he did touch her in her vaginal area during that examination. Paragraphs 154-155: Accepted in substance. Paragraphs 156-157: Rejected as irrelevant. The inappropriate behavior was not touching near the crotch area but the touching of the crotch. Paragraphs 158-159: Rejected as not supported by the evidence. Paragraph 160: Rejected as irrelevant. Paragraph 161: Rejected as subordinate to the finding that there was a touching. Paragraphs 162-164: Accepted in substance. Paragraphs 165-166: Rejected as irrelevant. Paragraph 167: Rejected as it refers to the last visit, otherwise accepted in substance. Paragraphs 168-172: Rejected as subordinate to the finding that there was a touching in the crotch area. Paragraph 173-175: Accepted in substance. Paragraph 176: Accepted. Paragraphs 177-179: Rejected as subordinate to the facts actually found that there was a touching in the vaginal area. Paragraph 180: Accepted in substance. Paragraphs 181-182: Rejected as subordinate to the finding that there was a touching in the vaginal area. Paragraph 183: Rejected as unnecessary. Paragraph 184: The first sentence is rejected as unnecessary. The sentence is rejected as constituting argument and as not supported by the evidence. Both women indicated that D.B. did not go into specifics and the sister-in-law testified that D.B. did not like the way that he had examined her and touched her legs. Paragraph 185: Rejected as not supported by the evidence. There was testimony that D.B. advised her husband. Paragraph 186: Rejected as irrelevant. Paragraphs 187-188: Rejected as subordinate to the finding that there were inappropriate touchings of the vagina. Paragraph 189: Accepted in substance. Paragraph 190: Having judged the credibility of the witnesses, it is rejected. Paragraph 191: Rejected as not supported by the evidence. Paragraphs 192-195: Accepted in substance. Paragraphs 196-199: Rejected as unnecessary detail. Paragraphs 200-203: Accepted in substance. Paragraphs 204-205: Rejected as irrelevant. Paragraphs 206: Accepted in substance. Paragraph 207: Accepted that Dr. Katzell moved the underwear, but rejected as irrelevant as to whether he remembers exposing the vagina. Paragraph 208: Accepted in substance. Paragraph 209: Rejected as unnecessary detail. Paragraph 210: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 211-212: Rejected as unnecessary detail. Paragraphs 213: Rejected as subordinate to the finding that he touched the vagina. Paragraph 214-216: Rejected as subordinate to the fact that he touched the vagina. Paragraph 217: Accepted in substance. Paragraph 218: Rejected as not supported by the evidence. Paragraphs 219-220: Accepted in substance. Paragraphs 221-222: Rejected as unnecessary detail. Paragraph 223: Accepted in substance. Paragraph 224: The first sentence is rejected as unnecessary detail. The last sentence is accepted in substance. Paragraph 225: Accepted in substance. Paragraph 226-228: Rejected as unnecessary detail. Paragraph 229-231: Accepted in substance. Paragraphs 232: Rejected as irrelevant. Paragraph 233: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 234: The first sentence is accepted in substance. The remainder is rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraphs 235-236: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 237: Accepted in substance. Paragraph 238: Rejected as irrelevant. Paragraph 239: Rejected to the extent that it implies that Dr. Katzell did not touch the vaginal area, but otherwise accepted in substance. Paragraph 240: Accepted in substance to the extent that it refers to the actions described in Paragraph 239 of Respondent's Findings of Fact. Paragraph 241: Rejected as subordinate to the finding that Dr. Katzell touched S.M.'s vaginal area. Paragraphs 242-245: Rejected as irrelevant. Paragraph 246: Rejected as constituting argument. Paragraphs 247: Accepted in substance. Paragraph 248: Rejected as constituting argument. Paragraph 249: Rejected as not supported by the evidence. Paragraph 250: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 251: Accepted in substance. Paragraph 252-257: Rejected as unnecessary detail. Paragraph 258-261: Rejected to the extent it implies that the tests and evaluations indicate that Dr. Katzell did not commit the violations alleged in the Administrative Complaint. Paragraph 262: The first two sentences are rejected as irrelevant. The third sentence is rejected as not supported by evidence that Dr. Katzell did not engage in sexual activity with the patients. Paragraph 263: The first two sentences are rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. The last sentence is accepted in substance. Paragraph 264: Rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. Paragraph 265: Accepted in substance. Paragraph 266: Rejected as not supported by the evidence. Paragraph 267: Rejected as constituting argument. Paragraph 268: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 269: Accepted in substance. Paragraphs 270-271: Rejected as irrelevant since there was sufficient evidence to establish that Dr. Katzell did commit a battery on each of the six patients. In the case of D.B., he did commit a battery on her on July 17, 1991 and out of the eleven counts of battery on D.B. for which Dr. Katzell was charged there was sufficient evidence to support a charge of battery on eight of the counts. Paragraph 272-273: Rejected as irrelevant. Paragraph 274-277: Accepted in substance. Paragraph 278: Rejected as unnecessary. Paragraph 279: Accepted in substance. Paragraphs 280-282: Rejected as subordinate to the findings that committed the violations as set forth in the Findings of Fact of this Recommended Order. Paragraphs 283-287: Accepted in substance. Paragraph 288: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 289: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The third sentence is rejected as irrelevant. Paragraph 290: Accepted to the extent that the evidence presented established that it is not likely that Dr. Katzell is not likely to commit in the future the type of actions alleged in the Administrative Complaint. COPIES FURNISHED: Albert Peacock, Esquire Hugh R. Brown, Qualified Representative Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Assistant Director Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x), Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
Findings Of Fact At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965. Patient L. H. From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week. L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred. L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time. The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive. Patient S.P. Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon. S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise. S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive. Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing. Patient L. M. Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly. Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts. Patient K. M. Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with K. M.'s testimony at final hearing, but that consistency does not enhance K. M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing. Patient L. G. L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan. After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help. The consistency of the testimony does not make it persuasive. Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent. DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 22rd day of May, 1989. APPENDIX The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on Findings of Fact Proposed by the Department of Professional Regulation Covered in finding of fact 1. Covered in finding of fact 1. Accepted in findings of fact 2, 6, 10, 11 and 12. Covered in finding of fact 11. 6-7. Rejected for the reasons stated in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 11. 13 Covered in finding of fact 6. Covered in finding of fact 7, of the facts stated that are rejected. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Rejected as subordinate to finding of fact 9. Rejected as subordinate to finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary. Rejected as unnecessary. 26.-29. To the extent necessary, covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 12. Rejected as unnecessary. Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing. Rejected as unnecessary. Rejected because the testimony of L.G. is not clearly convincing. Rejected as unnecessary. 37.-38. To the extent necessary, covered in finding of fact 13. 39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. Rejected because of the testimony of the complaining witnesses has not been clearly convincing. 50.-53. Rejected as unnecessary. 54. Rejected as unnecessary. Rulings on Findings of Fact Proposed By Dr. Wise Rejected as unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2 Covered in finding of fact 4. Covered in finding of fact 5. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 8. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. Covered in finding of fact 12, to the extent necessary. Covered in finding of fact 14. Covered in finding of fact 10. Covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 10. Rejected as unnecessary. COPIES FURNISHED: Susan Sewell, Esquire Law offices of Mark P. Lang 20 North Orange Avenue Suite 707 Post Office Box 2127 Orlando, FL 32802-2127 Jonathan King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 130 North Monroe Street Tallahassee, FL 32399-0750A =================================================================
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. At all times pertinent to these proceedings, Respondent was the director of the Calhoun County Public Health Department and the Liberty County Public Health Department. He split his time equally between the two health departments, working at each for two and a half days per week. Respondent saw approximately 16 patients per week in the family planning clinics in the two health departments. Patient S.M. S.M. was unsure of the date of her examination by Respondent. As conceded by Respondent's proposed finding of fact and corroborated by S.M.'s medical records, S.M. was seen by Respondent at the Blountstown or Calhoun County health department on October 11, 1989. Following a full physical examination by Respondent, inclusive of a pap smear, the nurse left the examination room with the pap smear specimen. Respondent and S.M. were left alone. S.M. was sitting on the examination table with the sheet wrapped around her. Respondent asked S.M. if she "watched dirty movies where people done it like dogs and ate one another." S.M. was discomfited and shocked by the question. Later, after leaving the examination room, she told a nurse at the facility that she did not like Respondent. S.M. felt that the nurse did not want S.M. to be heard by any other persons nearby. Patient E.B. Patient E.B. was seen by Respondent on August 17, 1990, at the Calhoun County Health Department. Following performance of a pap smear procedure, the nurse left the room with the specimen. Respondent touched E.B. between her legs and asked her if she liked sex, how many times a night did she have sex and how many orgasms she had. E.B. was "throwed for a loop" and gave no answer. She had not asked any questions of Respondent to precipitate such sexual inquiries. Patient M.H.A. On December 13, 1990, Patient M.H.A. was seen by Respondent for a gynecological examination. M.H.A. was 14 years of age at the time. Following departure of the nurse from the examining room with the pap smear specimen, Respondent was left alone with the patient. Respondent asked M.H.A. if her boyfriend had a big penis and if her boyfriend liked her because she had big breasts. Shocked and surprised at these questions, but unsure of their propriety since this was her first gynecological examination, M.H.A. gave Respondent no answer to his questions. Upon the nurse's return to the examination room a short time later, M.H.A. dressed and left the room. Patient R.H.P. On August 23, 1989, R.H.P. was examined by Respondent. Again, when the nurse left the examination room with the pap smear specimen leaving Respondent alone with the undressed patient, Respondent began asking questions. He asked the female patient if she ever had an orgasm. Being 14 years old, she replied that she didn't know what that was. Respondent asked R.H.P. if she went with her boyfriend for the size of his penis. R.H.P. said no. Respondent left the room, the nurse returned and R.H.P. dressed and left the facility. L.H. is the mother of Patient R.H.P and Patient M.H.A. At final hearing, L.H. related that M.H.A. told her the questions asked by Respondent during the child's examination. Patient R.H.P. confirmed to her mother that she had been asked similar questions. L.H.'s testimony is credible and corroborative of her daughters' testimony with regard to Respondent's conduct. Respondent Respondent is 74 years of age and has dedicated his professional career to the practice of medicine in the Blountstown area. As a matter of routine, Nurses Pratt and Johnson left Respondent alone with his female gynecological patients at the times in question in these proceedings when they left the examination room with specimens destined for laboratory analysis. While she never heard Respondent ask inappropriate questions, Nurse Pratt admits that some patients informed her that they were uncomfortable with examination by Respondent and never wanted to be examined by him again. Respondent's denial that he asked the questions about which his patients testified, is not credited. As established by the testimony of Elga White, M.D. and Harvey Gardy, M.D., experts testifying on behalf of Respondent and Petitioner, respectively, the questions posed by Respondent to the four patients which form the subject of this proceeding were inappropriate in the absence of initiation of such sexual inquiries by the patients.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 61F6-20.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in counts one and two of the Administrative Complaint and imposing discipline upon Respondent's license as follows: Imposition of an administrative fine of $5,000. Suspension of Respondent's license to practice medicine for a period of not less than six months with reinstatement upon satisfaction of conditions to be imposed by the Board of Medicine. Imposition of a probationary period of two years following reinstatement with probationary conditions to be determined by the Board of Medicine, inclusive of a condition that Respondent have a female attendant present at all times when he is with a disrobed female patient in an examining room. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of October, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-13. Adopted in substance, but not verbatim. Respondent's Proposed Findings. 1.-6. Adopted. 7.-16. Rejected, unnecessary. 17. Incorporated by reference. 18.-20. Rejected, unnecessary, with exception of last sentence of proposed finding #20, which is not supported by weight of the evidence. Pratt did receive complaints from patients about inappropriate questions. See, Tr.153. 21. Rejected, subordinate to HO findings. 22.-27 Rejected, unnecessary and subordinate to HO findings. 28.-29. Adopted. 30.-38. Rejected, subordinate to HO findings. 39. Adopted. 40.-47. Rejected, subordinate to HO findings. Adopted. Rejected, unnecessary. 50.-54. Rejected, subordinate to HO findings. 55.-64. Rejected, argumentative, credibility with regard to the comments made to R.H.P. clearly sides with R.H.P. Proposed findings are subordinate to HO findings. 65.-72. Rejected, subordinate to HO findings, argument. 73.-74. Rejected, unnecessary. 75.-77. Rejected, argument. 78.-82. Rejected, subordinate to HO findings. COPIES FURNISHED: Michael P. Spellman, Attorney at Law P. O. Box 1674 Tallahassee, FL 32302-1674 Francesca Plendl, Senior Attorney D B P R 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Marm Harris, Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
