of Keniurkg RECEIVED . (ilnurt nf ?Appeala DEC ?"2008 . KEML NO. KENTUCKY BOARD OF LICENSURE APPELLANT v. I APPEAL FROM JEFFERSON CIRCUIT COURT ACTION NO. ERIC C. NORSWORTHY . APPELLEE ORDER 2: a: a: a: EEPORE: CAPERTON, KELLER, AND TAYLOR, JUDGES. Before the Court is appellant?s motion for interlocutory relief from a temporary rnjunotion Of the Jefferson Circuit Court. "Our Standard of review for a motion for interlocutory relief priorxto a ?nal judgment is abuse of discretion. CR 6537. InjunctiOns are appropriate when ?it is clearly shown by veri?ed oor?plajm, affidavit,? or other evidence that the Inovant's rights are being or will be violated by an adverse party andthe movant will suffer immediate and irreparable injury, loss, or damage pending a ?nal judgment in the action,? or the acts of the adverse party will tend to render such ?nal judgment ineffectual.? .04. Having reviewed the appellant?s motion and the appellee?s response to said - rm.? motion, the determined that an abuse of discretion occurred when the trial court determined that the immediate irreparable injury necessary for an injunction was present in this case. It is therefore ORDERED that appellant?s motion for relief is GRANTED and the Jefferson Circuit Court?s temporary injunetion is ordered STAYED. If, I . ENTERED: DEC 1 313398 APPEALS I CASE NO. CIRCUIT COURT - - DIVISION ERIC A. NORSWORTHY, MD. I PETITIONER seesaw . Vs. . - FINDINGS OF FACT AND .. . - CONCLUSIONS OF LAW SEN 2: 2008 KENTUCKY BOARD OF MEDICAL LICENSURE. RESPONDENT This matter comes before?th?e Court onthe PetitionerEricA. Norsworthy, Norsworthy?) CR 6504 Motion for a Temporary Injunction to prevent the ReSpondent Kentucky. Board of Medical Licensure or ?the Board") from enforcing ail-Order of Restriction against his medical license entered on July 24, 2008 and scheduled to take effect August 26, 2008. Oral arguments were presented on August 25; 2005. After carefully considering the arguments of the parties and a study Of the pleadings and recOrd and relevant case and statutory law, the Court will grant the motion. FINDINGS OF FACT I On December 4, 2007, the isued a comnlaint against Dr. Norsworthy charging him with committing sexual misconduct with a patient by inappropriately touching her breast during an examination. After an administrative hearing held on May 7, 2008, a hearing Of?cer concluded Dr. Norsworthy did so commit SeXUal misconduct in vidlation of KRS 3l 1.595(5) and (9) and recommended in his Findings of Fact, Conclusions of Law and Recommended Order on May 23, 2008 that the doctor?s license be revoked; Panel Bmet-on July 17, 2008 to review the caSe I and recommended in its 24, 2008 order. that Dr. Norsworthy?s license not be revoked, that he be prohibited ??Om everexamining female patients again. As the Court understands the facts, 'Dr. Norsworthy was indicted in Ohio County Circuit court on a nine-count felony indictment for alleged violations of KRS 2 concerning possible improper KASPER record requests; further, Dr. Norsworthy has also been named defendant in a civil suit ?led by the grievant herein in the Ohio County Circuit Court. As for the circiumstances giving rise to the complaint against Dr. Norsworthy, on February 20, 2007, the grievant went to Dr. Norsworthy?s of?ce for treatment of a cold and a rash on her leg. The evidence showed that the grievant had been a patient of the doctor?s before, as had her children, and that she had had no problems with'him-in the past. A nurse escorted her to a'triage roth and . took her vital signs. There Was dispute at the hearing as to whether the grievant and Dr. Norsworthy were alone in the room when he examined her; she claimed they were, while Dr. Norsworthy and his nurse claimed the nurse was there; however, neither of them could speci?cally remember the nurse being in the room. The grievant claimed that the doctor placed his stethoscope on her back and asked her to breath deeply several times. Shethen stated that he. moved to her front and asked her to move her bra. She did so, and he asked her to move it farther. When she obliged, he allegedly placed his hand under her bra and placed the palm of his hand around the bottom of her left breast as his ?ngers held the stethoscope to her chest. The grievant subsequently reported this incident to her husband and her best friend, discovering from the latter that Dr. Norsworthy had been accused of such behavior in the past. She ?led a report with the Kentucky State Police about the event on February 22., 2007. The KSP informed the KBML of the case. On September 26, 2007, the grievant ?l?d .filed her grievance With - The hearing was held be May 7, 2008. Before the hearingthe Hearing Ot?ficerrhad- denied Norsworthy?s request that he be given an opportunity to examine and preSent certain of the - 'grievant?s medical records and drug history as evidenced by her KASPER records.? The Hearing Of?cer also denied Dr. Norsworthy?s motion to exclude ?bad acts? testimony regarding his past disciplinary issues with the KBML. Without detailing these issues in their entirety, the I 0 Court would note that Dr. Norsworthy has been acCused in the past of fondling or cupping women?s - breasts during examinations on several different occasions. The doctor is quick tolnote in his Petition for Judicial Review that these complaints were resolved by a 2002 Agreed Order between I Dr. Norsworthy and the which states that ?the evidence did not establish medically inappropriate touching.? There is no doubt that the Hearing Of?cer took Dr. Norsworthy?s past record into consideration. as he devoted some 27 paragraphs in his Order detailing the complaints and their various resolutions. There can also be no doubt but that the KBML has worked with Dr. Norsworthy to address the complaints, as evidenced by agreed orders reached in 1989, 1990, 1993, and 2000: inter alia, it has placed him on probation, has ordered him to undergo counseling, and . has required him to have a chaperone in his of?ce during examinations of female clients. It is Worth noting that Dr. Norsworthy has presented the Court with some 459 signatures of support from the public. Moreover, at the TRO hearing, the gallery was practically full of people wearing yellow shirts in Support of Dr. Norsworthy. The Court was interested to note that the great majority of the many people who 'came to the hearing some two and one-halfhcurs away from their home county were women. CONCLUSIONS OF LAW CR 6504 reads in pertinent part: i A temporaiy injunction may be granted during the pendency of an action on motion if it is clearly shown by veri?ed complaint, af?davit, or other evidence that the moVant?s rights are being or will be violated by an adverse party?s and - the in'QVant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts . of the adverse party will tend to render such final judgment ineffectual. Because the injunction is an extraordinary remedy, suf?ciency of the evidence below must be evaluated. light of both substantive and equitable principles. Realizing that'the elements of CR 65.04 must often be tempered equities of any situation, injunctive relief is basically addressed to the sound discretion of the trial court. Maupin v. Stansbury, 575 695, 697 -98 (Ky.App., 1978). A three-part test exists in determining whether to issue a temporary injunction. LL. Eli-699. The ?rst prerequisite, mandatory under Rule 65.04, is a showing of irreparable injury. Secondly, the trial court must weigh the equities involved. Finally, the third prong requires the issuing trial court to assure that a substantial question is at issue. See Sturgeon Min. Co.. Inc. v. Coal Lug, s92 s.w.2d 591, 592 (Ky. 1995). In order to show?hann to his-rights, a party must ?rst allege possible abrogation of a concrete personal right. Morrow v. City ot?lLouisville, Ky, 249 721 (1952). While the nature of this right may be, and usually is, disputed, it is clear that some substantial claim to a personal right must be alieged. M_a_upi_n, 575' at 698. In addition to showing that personal rights are at stake, CR 65.04 further requires a clear showing that these rights will be immediately impaired. Thus, the remote possibility ofsorne feared wrong inthe future is insuf?cient to support a trial court's award I 1? are. temporary injunction. Chairman Beaver Dam Coal 327 397 (1959). Rather, the. element of- "immedigaciy" contemplates that-the-?paities Show anurgent necessity for relief. McCloud v. City of Cadiz; _Ky.App., 548 158 (.1977); This-means that injunction will not be granted on the. ground merely of an anticipated danger or an apprehension of it, but there must I be areasonable probability that injury will be done if no injunction is granted." Hamlin v. Durham, i 235 Ky. 842, 32 413, 414 (1930). The Court ?nds ?rst that Dr. Ebert has satisfactorily shown he has suffered an immediate injury by way of being restricted from treating female patients. The KBML argued that he is still able to treat ?half of the population,?l but that argument ignores that some seventy percent of Dr. Norsworthy?s patients are Women, leaving him with a practice some 30% of what it would have been. Dr. contends the grievant is but one person making a single allegation of . wrongdoing, and that in the eighteen months which have passed since her visit in February, 2007, no one else has come forward with similar complaints. The Court is satisfied that removing the doctor?s ability to treat the women who comprise the majority of his practice does more than simply limit his ability to earn money. It also limits his ability to sign new patients and may compromise retention of old patients who may be forced to ?nd new doctors in his absence. Next, the Court must weigh the equities involved. The KBML is assuredly correct in arguing the public must be protected from those physicians who are apt to cause it harm, especially in light .of evidence that complaints as serious as these have been made in the past. However, the Court ?nds that the equities in this case lie in favor of Dr. Norsworthy. As mentioned, in theleighteen months this issue has lingered since the grievant?s initial visit in February, 2007,no'one has come forward - tocornplain that Dr. touched her inappropriately. 'Dri [Norsworthy has presented Cr Several hundred signatures in hissupport, and a crowd of peeple,'1nainly women, appeared in Court far Ail-om home to support the doctor. According to the'Centers for Medicare and Medicaid Services I . publication, Ohio County is'an HPSA for MentalHealth physicians.? Dr. Norsworthy currently . works as the Ohio County jail physician and is Medical Director for three nursing homes in Ohio County, in which he treats some 113 female nursing home patients. The Court must also take into 7 . accountthe own actions in the past and now: the 2002 agreed order speci?cally states that medically inapprOpriate touching was not proved, and Dr. Norsworthy indicated that at least two members suggested this matter be held'in abeyance until the Ohio County civil Suit is I resolved. The Court is very concerned that the allegations against Dr. Norsworthy be taken and dealt with seriously, as the KBML is doing, but it is satis?ed that maintaining the status quo as it has existed these past eighteen months is appropriate in this case. Finally, the Court is convinced Dr. Norsworthy has presenteda substantial question rendering a temporary injunction appropriate. He presented two cases dealing with the notion of how and whether KASPER records? con?dentiality should take precedence over a litigant?s rights to discover exculpatory evidence? in that the matter at bar concerns a single incident with one person who, it has been mentioned quite often in the record, has at some point taken fairly serious prescription drugs, the Court is satis?ed that a question as to whether that drug use, along with her 'See website at (updated 2005). 2The Court recognizes that these cases have been accepted for Discretionary Review by the Supreme Court and are therefore not binding or precedential for this Court. 6 histon'i,? should be considered in assessing the allegations against Dr.? Norswortliyis a'isubs?tantial i, ?7 - questiOH cf law insofar as'that term relates to the isseaiice of teinporaiy'injunctions.? For these - reasons,tthel Court will issue the reqUested temperary injunction against the enforceinent cf the Order of Inde?nite Restriction of Dr. Notsworthy?s license. . ORDER WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED that the ReSpondent?s' Motion foi' 3 Stay of the Emergency order ofSuspensio and ereby is . D. . OR 3st DGE JEFFERS CUI CO T. NW: Dim VDAWD L. NICHOLSONEILEHK cc: - I I . David Lambertus, Esq. AS 9 600 West Main Street, Suite 300 Louisville, ?3v - Karen Quinn, Esq. Assistant General Counsel Kentucky Board of Medical Licensure 310 Whittington Parkway, Suite 18 Louisville, KY 40222 0F HECGRD COMMONWEALTH OF KENTUCKY JUL 21; 2003 . BOARD or MEDICAL LICENSURE CASE No. 1135' gauging IN RE: THE LICENSE TO PRACTICE MEDICINE IN THE COMMONWEALTH OF KENTUCKY HELD BY ERIC A. NORSWORTHY, M.D., LICENSE 0. 20834, 1219 NORTH MAIN STREET, BEAVER DAM, KENTUCKY 42320 ORDER OF INDEFINITE RESTRICTION I At its July 17, 2008 meeting, the Kentucky Board of Medical Licensure (hereafter ?the Beard?), acting by and through its Hearing Panel B, took up this case for final action. The members of Panel reviewed the Complaint; the Hearing Officer?s recommended Findings of Fact, Conclusions of Law and Recommended Order; a June 25, 2008 memorandum from the Board?s Assistant General Counsel; Exceptions to Recommended Decision; and the Brief in Support of a Finding'in Favor of Respondent by Hearing Panel B. The licensee?s counsel were present at the meeting. The Panel determined that they had sufficient information to finally resolve the Complaint without hearing further argument by either party. Having considered all the information available and being sufficiently advised, Hearing Panel ACCEPTS the hearing officer?s recommended Findings of Fact and Conclusions of Law and ADOPTS the Findings of Fact in their entirety and Conclusions- of Law I through 11 and INCORPORATES them BY REFERENCE into this Order. (Attachment). Hearing Panel further takes administrative notice of its billing records and makes a Separate Finding of Fact 138 that the costs of this proceeding were $4,774.50. Hearing Panel ADOPTS Conclusion of Law 12 to the extent it discusses the Board?s past actions against Dr. Norsworthy, his actions in the current case, and that Dr. Norsworthy is not subject to rehabilitation. The Hearing Panel MODIFIES Conclusion of Law 12 to the extent that it indicates that revocation of DrrNorsworthy?s license to practice medicine is the appropriate sanction. The Panel members discussed whether revocation or permanent restriction of the license was the appropriate sanction in this particular case. They noted the Hearing Officer?s recommendation that the license be revoked. Certain Panel members noted that, in certain previous cases, the Panels were able to appropriately protect the public by allowing a licensee to resume the active practice of medicine, after having his license revoked for the minimum two-year period, by requiring the licensee to agree to a permanent restriction of their medical practice, under which theyiwere forever prohibited from engaging in the practice of medicine with female patients. These Panel members reasoned that they could avoid revocation of the licensee in this case if they were able to impose a permanent restriction upon this licensee?s medical practice whereby he could never see or treat female patients. Accordingly, the Panel voted to withhold revocation in this particular case so long as they could permanently restrict this licensee from seeing or treating female patients for the remainder of his medical career. The Panel expressly. concludes that, in light of this licensee?s previous history and the current findings, the only sanction which will adequately protect the public is one which conclusively ensures that this licensee may never be permitted to enter into a physician-patient relationship with or to perform any medical procedure evaluation, diagnosis or treatment on any female patient during the remainder of his medical practice. If this can be accomplished by a permanent restriction upon his medical license, then revocation may be avoided and he may be permitted to practice under this permanent restriction. Therefore, Hearing Panel ORDERS: 1. The license towpractice medicine in the Commonwealth of Kentucky held by Eric A. orsworthy, MD. is FOR AN INDEFINITE PERIOD OF TIME. 2. During the effective period of this Order of Indefinite Restriction, the licensee?s Kentucky medical license SHALL BE SUBJECT TO THE FOLLOWING TERMS CONDITIONS OF for an indefinite term, or until further order of the Board: a. The licensee?s practice of medicine is expressly and permanently RESTRICTED to providing medical treatment and acting as the treating physician to male patients only. b. The Panel will not consider any request by the licensee to resume providing medical treatment and acting as the treating physician to female patients. c. The licensee SHALL pay the costs of this proceeding in the amount of $4:774.50 within six (6) months from entry of this Order of Indefinite Restriction; d. The licensee SHALL NOT violate any provision of KRS 311.595 and/or 31 1.597. SO ORDERED on this 24th day of July, 2008. RANDEL C. D.O. CHAIR, HEARING PANEL Certificate of Service I certify that the original of the foregoing Order Of Indefinite Restriction was delivered to Mr. C. William Schmidt, Executive Director, Kentucky Board of Medical Licensure, 310 Whittington Parkway, Suite 1B, Louisville, Kentucky 40222 and copies were mailed via certified mail returnwreceipt requested to Eric A. orsworthy, M.D., 1219 North Main Street, Beaver Dam, Kentucky 42320; and David Lambertus, Esq., 600 West Main Street, Suite 300, Louisville, Kentucky 40202 on this 24th day of July, 2008. In". . .W KAREN QUINN Assistant General Counsel Kentucky Board of Medical Licensure 310 Whittington Parkway, Suite 1B Louisville, Kentucky 40222 502/429-7150 EFFECTIVE DATE AND APPEAL RIGHTS Pursuant to KRS 311.5930) and 13B.120, the effective date of thisiOrder will be thirty (30) days after this Order of Indefinite Restriction is received by the licensee or the licensee?s attorney, whichever shall occurfirst. The licensee may appeal from this Order, pursuant to KRS 311.593 and .150, by filing a Petition for Judicial Review in Jefferson Circuit Court within thirty (30) days after this Order is mailed or delivered by personal service. Copies of the petition shall be served by the licensee upon the Board and its General Counsel. The Petition shall include the names and addresses of all parties to the proceeding and the agency involved, and a statement of the grounds on which the review is requested, along with a copy of this Order. COMMONWEALTH OF KENTUCKY MAY 23 2003 KENTUCKY BOARD OF MEDICAL LICENSURE -. - - I AGENCY CASE . KBMA. ADMINISTRATIVE ACTION NO. - KENTUCKY BOARD OF MEDICAL A COMFLAINANT vs. - FINDINGS OF FACT, CONCLUSIONS - OF LAW, AND RECOMMENDED ORDER . ERIC A. NORSWORTHY, MD. . . RESPONDENT- LICENSE NO. 20834 a. I 5+ a; I On the Officer conducted the administrative hearingon the A 'Comj?leint isSued by the Kentucky Board Of Medical LiCensure [hereinafter ?the againSt the license of the respondent, Eric A. At the hearing Hon. Karen Quinn reoresented the Board, and Hon. David A. Lambert-us represented Dr. orSworthy. A A After Considering the evidence admitted at the hearing and the arguments Of i - counsel, the hearing of?cer recommends that the Board find Norsworthy guilty of the charges against him. The hearing Officer further recommends that the Board ad0pts MS. Quinn?s request that Noteworthy? license to practice medicine be terminated aS a result of his misconduct. In Support of his recommendation, the hearing Officer submits the .g following findings of fact, conclusions of law, recommended order. OF FACT 1. The Charges 1. On December 4, 2007, the Kentucky Board of Medical Licensure issued the Complaint against Eric A. Norsworthy, charging him with violating KRS 311.595(5) and KRS as illustrated by KRS 2. Under those statutes, 8. physician is subject. to disciplineif he has sexual contact with a patient and if he has engaged dishonorable, unethical, or unprofessional conduct by his failure to conform to the principles of medical ethics of the American Medical Association. - 3. The substance of the allegations? against Norsworthy are that While performinga physical examinatiOnof a female patient who had sought treatment?for a cough and sore throat, he asked her to pull her bra away from her chest, and when she complied With that request, "he placed his hand under her bra and cupped her left breast with most of his hand While still holding the stethoscOpe. He then went above her left breast, seemingly to listen to her chest, but still-resting the heel of his hand on her breast.? Complaint, page 4. 4. In order to protect the privacy of the female patient who has made the allegations of misconduct against orsworthy, she will be referred to as the ?complainant? in this recommendation. 5. In his defense, orsworthy asserts that all of the complainant?s allegations of misconduct are untrue. He denied that he asked the complainant to pull her bra I away from her chest, denied that he cupped her breast with his hand during the physical examination, denied that he engaged any inappropriate touching or 1 other misconduct toward the complainant. Norsworthy asserted that the complainant was intoxicated during the exam and fabricated the allegations in order to collect damages in her civil lawsnit that is pending against Norsworthy is licensed to practice medicine in Kentucky.- 7. His medical specialty is family medicine, and the office for his medical . practice is located in Beaver Dam, Kentucky. II. The Complainant?s Previous Medical History with orsworthy 8. I Prior to the incident at issue in this action, the complainant had been examined by Norsworthy onerlly one-occasion, September 9, 2002. Exhibit 6. 9. On several other occasions, however, she had taken her children tolbe examined by physicians in Norsworthy?s office. i 10. vNorsworthy himself had provided medical care to her children'on some of those visits, but he was not their primary physician. 11. The complainant stated that Norsworthy had always been professional in .his dealing with her, and prior to the incident at issue in this action, she had believed him to be a good doctor. l2. The complainant has had no interaction or asseciation with Norsworthy. other than through the office visits. The Complainant?s Allegations Against Norswo'rthy I 13. The complainant scheduled an appointment with Norsworthy?s office for. February 20, 2007, at 10:30 am, in order to seek, treatment for chest congestion, a sore throat, an ear ache, body aches, and a rash. 14. She had been suffering with those for three weeks had I decided to contact a doctor when she feared that she had developed pneumenia. - 15. I When the complainant made her. appointment for February 20, Norsworthy was the only physician available to see her. I 16. Several members of Norsworthy?s office staff who testified at the hearing described February 20, 2007, as a very busy day due to the large number of patient appointments - i 17. The complainant could not recall whether she completed the forms for new patients since she had not been examined recently by any of the physicians in the of?ce. 18. On the morning of February 20, 2007, the COmplainant noticed only two or I I three support staff in the office, but there was a total of six to eight nurses who worked that day. I I 19. The complamant was eventually called from the waiting room to a small examination room 'where Linda. Morse, one of the nurses on the staff,tool< the complainant?s vital signs andrecorded her Exhibit 23. 20. After Morse obtained that information, the complainant was taken to an I examination room to wait for NorsWorthy. 21! There is no dispute that the complainant was alone in the examination room - While she waited for orSWOrthy to arrive. 22. The complainant asserted that when Norsworthy? entered the examination room, he was alone, and no staff member. entered the room at any point during the examination. 23. Norsworthy asserts that Linda Morse must have been in the room during . the examination, but neither she nor Norsworthy had any independent recollection of her presence during that particular examination. . 24:. The complainant asserted that Norsworthy began the examination by asking her a' series of questions about her I 25. After obtaining that information, he used his stethoscope to listen to her I 7 lungs, beginning with herback', and he asked her to takegdeep breaths as helistened at several different points on her back. i 26. Norsworthy then moved to her front; and the complainant asserted that he asked to "pull .her bra out a little? so that he could examine her chest with the I stethoscope. 27. The complainant pulled out her bra at its center and from the outside of her shirt, and in to Norsworthy?s request that she. ?pull it out .a little more,? she did so. 28. He then moved his hand that was holding the stethoscope underneath the bra,and he placed the cup of: his hand around the bottom of her left breast as he?jused his ?ngers to hold the stethoscope to her chest while he asked ,her'to breathe. i 29. The complainant believed his hand in that position l" for about a minute. i i 30. He performed the same examination on the right side of her cheat with his hand cupped around the bottom of her right breast. 31. The complainant stated that the examination happened very quickly and that she?did not understand what was going on orsworthy hadfinished. 32. She stated that he could have placed the stethoscope at each location on her chest without disturbing her clothingiand Without placing his hand on her breasts. 33. No other physician had ever-cupped his hand around her breast While - using a stethoscope to exarnineher chest. 34. She did not say anything to orsworthy in response to his?actionshad examined her in that manner. I 35. The complainant was confused, shocked, and embarrassed by his actions. 36. After. taking his hand from beneath her bra, Norsworthy told the a complainant that she had someicongestion, bronchitis, and redness in her throat and that he would prescribe her some antibiotics. Exhibit. 6. 37. The complainant told Norsworthy? that she couldn?t afford more than a nominal amount for medication, and he offered to give her a voucher to receive a discount for antibiotics at a local pharmacy. 38. He left the. examination room and returned With the voucher and asked her I .. to make a follow~t1p appointment if her did not improve. ?39. . The coniplainant estimated that she was the examination. room for altotal of ?fteen to tWenty minutes. 40. 'When the coiniplainant left the medical office, there were no-nursesor other staffin the hallWay, and only one gentleman was sitting in the waiting roorn. . 41. The complainant asserted that the shade was drawn at the receptionist?s Window, and therefore, she did not stop there before leaving the office: 42. She stated that she did not have a discussion with anyone other than Norsworthy concerning the voucher for obtaining the prescription for antibiotic. I .43. l. The complainant drove to the pharmacy to get the prescription filled returned'to her home. - I 44. During the tiine period between leaving the'of?ce and arriving at her house, the complainantdesoribed herself as being ?dumbfounded,? and she thought to herself, think he just felt me up.? She was confnsed and didn?t understand ?Why he had done the as part of the physical examination for her 45. Shortly after arriving home, she confided to her husband what had transpired during the of?ce visit. 46; The more the complainant thought about the incident, the more upset she became. I 47. Even though she Was upset, the complainant not believe she was more upset than any other woman would'have been if had touched her in the I same Inanner. I 48. On the same day as the of?cevisit, the complainant also told her best friend about how Norsw'orthy had touched her. i I 49. Her friend responded by stating that Norsworthy had done the same type of thing to other female patients, but the complainant had never heard of those. accusations. 50. 'The next day, the complainant went to her local sheriff?s Ioffice to file a complaint, but they told her that she had to file it with the Beaver Dam police departmentwhere the incident occurred. That police department. told her the incident would have to be handled by the State Police, and she was put in touch with a detective from that police force. 51. On February 22, 2007, which was two days after the incident, she met with the detective and prepared a written statement setting forth the accusations against which were recounted during her testimony at the administrative hearing. Exhibit-2?. 52. The detective told her that the next step for her would be to file a grievance With the Board, and he gave her the address for the Board?s website Where she could obtain additionalinformation about the grievance process. 53'. When the complainant Visited the Board?s website, she discovered that . other actions hadbeen taken by the Board against Norsworthy and that the Board had 3 ,?ordered him to have chaperons in the room during-his examination of female patients. i 54.- Eventually, she filed withthe Board a grievance. dated September 26, 2007, it. contained substantially the same allegations as: were presented in her Written statement to the state police._ Exhibit 55.- Since February 20, 2007, the complainant has not returned to Norsworthy?s of?ce, and her children have not been seen by any other nurse or physician in that a practice. 0 IV. Noteworthy?s Defense to the Charges 56. orsworthy denied that he engaged. in any his 'examinatiOn of the complainant, and asserts that the interaction with and I ?0 examination of the patient were routine and unremarkable. Therefore, he denies all of the complainant?s allegations of misconduct. 57. His position was largely supported by the members of his office staff who testi?ed at the hearing. 58. In spite of the fact that February ?20, 2007, was a very busy day, Lykins, a nurse and office manager for orsworthy?s medical practice and the author of his own chaperon policy, stated that she had clear recollections of the complainant?s of?ce visit. Lykins recalled that after the complainant arrived at the, office, she approached the receptionist?s window to ask how much longer she would have to wait to see a doctor, an event that occurs frequently enough not tolbe particularly; unusual.? There was no suggestion that the complainant was loud or so troublesome as to make 0 the encounter memorable. - - 59. :Lykins also recalled seeing the complainant alone in the examination room during her office visit on liebruary 20, 2007. I 60. Lylcins stated that after the complainant had been examined by . Norsworthy, she stood atth'elwindow for the receptionist,.who Lykins aeserted was at her work station at the time, as Lykins retrieved and presented to the coniplainant a voucher for a discount on the prescription medication;- 61. Lykins did not state why she had such vivid recollections ot the Camplainant?s actions on that particular day when all of Lykins? interactions the complainant involved routine patient/ staff encounters or'otherWise fairly common occurrences. I I 62. In addition, Lykins did not state when she ?rst became aware of the accusations by the Complainant against Norsworthy or of the complainant?s assertion that there was no one present at the receptionist?s desk when she left the office. 63. The first record?that contains that particular assertion is the grievance filed with the Board on September 26, 2007, seven months after the date of her appointment. Exhibit 4. I 64. Yet, Lykins asserted that she recalled not only delivering the prescription 10 voucher to the complainant on the date of herlappointment, but that she did so at the - receptionist?s window and the presence of the receptionist. - 65. Furthermore, it is undisputed that whenthe complainant left the of?ce, several of the staff were at lunch and only one person was Sitting in the waiting'room. Since it is also undisputed that February 20, 2007, was a busy day, those facts support the conclusion that the staff was in the process takings lunch break, that there were if patients left to be examined prior to the break, that the of?ce was not fully staffed- due to the lunch break, and that no one was manning the receptionist?s desk when the complainant left the office. 66. Although the issue concerningwhether the Complainant stopped at the receptionist?s desk prior to leaving the office is unrelated to the specific allegations of. misconduct against orsworthy, he raised the issue in order to suggest that if she was mistaken on. that issue, her assertion that he touched her in an inappropriate manner is? also unbelievable. I 67. The hearing officer finds, however, that the complainant was a credible witness, and her statements as to the events that transpired during her of?ce visit were credible. 68. During her testimony, the complainant related the events as she recalled them, and she presented detailed and consistent testimony regarding her of?ce visit and Norsworthy?s conduct during the entire examination. She was not reluctant to ii acknowledge the facts that she did not know, and she did not make any attempt to highlight or exaggerateithe nature of Norsworthy?s misconduct or her reaction to it, 1 69. Furthermore, her assertions that NorSworthy completed the examination? - before AShe fully realized what had happened, that she was shocked and confused by his conduct, that she became more angry the more she thought about the events, and that 3 she had always trusted her physiciansto act in an appropriate and professional marmer, were all believable and reasonable reactions to orSworthy?s misconduct that occurred as part of a legitimate medical examination. 7 O. In addition, if the complainant was shocked, angry, and confused about What had just transpired during the examination, she could have been distracted enough by his misconduct not to recall acCurately what may have transpired irnrnediately afterward, especially since the latter events were not in themselves signi?cant or memorable in the context of the misconduct that had just occurred in the examination room. 71. NorSworthy suggests that he could not have engaged in the misconduct as alleged by the complainant since a staff member could have entered the examination room at any time. i 72. The complainant, however, was not in a state of undress during the examination, and orsworthy?s hand was concealed beneath the complainant?s shirt. Thus, it Would not have been readily apparent to anyone entering the room that 12 Norsworthy?s hand was: also inside the complainant?s bra or that he was engaged . . anything but a routine medical examination. 73. Norsworthy also asserts that the very language used by the complainant to describe his misconduct, that he ?cupped her breast,? suggests that prior to making the? - I accusations, she read information that was available at the Board?s website regarding I previous Board aetion against him and fabricated the allegations in order to collect money damages. 74. There'was no evidence to support the conclusion that the, use of the word ?cup? to describe the holding of a breast in one?s hand is an unusual or unique expression, and there was no evidence that the complainant knew of other allegations I against orsWorthy or that she had visited the Board?s website prior to informing the police of her allegations against him. 75. Although the complainant has a pending civil lawsit against Norsworthy involving the same conduct at issue in this action, the preponderance of the evidence does not support the conclusion that she fabricated her allegations against him, much less that she did so simply as part of a scheme to collect damages. There also has been no suggestion that she discussed her allegations with an attorney prior to her contacting the police departments and presenting them- with the written statement of the allegations thatare at issue in this action. Exhibit 2. Her assertion that she contacted the police, submitted her grievance to the Board, and filed a lawsuit based upon the fact that Norsworthy?s conduct was wrong and offensive is believable, l3 76. In his dictated notes tor the February 20, 2007, of?ce Visit, Norsworthy, after - noting that the complairiant was taking -Wellbutrin Ella, Cymbalta 60 mg, Xanax 1 mg? four times a day,Sequuel, and Vist'eril, stated that she "appears to be under the- . in?uence of medication today? and that he "refused her request to re?ll her Xanax, since she already gets that from River Valley.? . 77._ Norsworthy testified at the hearing that the co'mplaihant was so intoxicated during the examination that he was surprised that she could make it'into the of?ce. 78. The complainant denied that she was?iritoxicated or that she requested a . re?ll of the Xanax. 79. Presumably other staff members who had interacted the complainant would have noted her allegedly extreme intoxication, and it would hayebeen understandable that they would recall someone who appeared to be'signi?cantly impaired. Neither Morse, who recorded the complainant?s Vital signs and nor any other staff member, other than Norsworthy, testi?ed that the complainant was intoxicated on the date of the examination. 80. Furthermore, orsworthy did not state at the hearing or note in the medical chart thathe counseled her about her state of intoxication or that he attempted to delay her departure from the office in order-to prevent her from driving While impaired, especially when he had just presented her with a prescription that she would need to . have filled at a pharmacy. l4 .81. Therefore, orsWorthy?s allegations as to complainant?s intoxication and her alleged request to refill a Xanax prescription are not credible. Either he dictated the I a note for the medical chart after he was first informed of her allegatiOns, or most likely,- he fabricated his allegations in order to be able to challenge her credibility if she ever accused him of the misconduct that occurred during the examination. V. Previous Allegations of Misconduc?tAgai?nst Norsworthy 82. From his own history as a practicing physician orsWorthy was well aware of the fact that a patient conld accuse him of sexual misconduct. 83. Thus, a physician who has a history of being accused of such conduct can be expected to take steps to protect himself against such charges. 84. orsworthy has an extensive history of patient complaints and disciplinary actions before the board dating from 1989 that involved accusations of inappropriate I . . .8 sexual contact with female patients. I 85. As set forth in the Stipulations of Fact of the Agreed Order entered on June 2002, Norsworthy has been subject to a series of agreed orders entered between him the Board as a result of complaints of inappropriate sexual contact with female patients in 1989, 1990, 1993,"and 2000. ambit 1B. 86. As a result of the Board?s investigations conducted in 1989 and 1990, a sixteen year old female patient and her mother asSerted that Norsworthy ?simply lifted - [the patient?s] breast out of her bra and fondled her breast in a way no other doctor had '15 done,? and two other female patients asserted that orsworthy. ?hand sexual intercourse withthem after giving them some medication.? Exhibit 1B, page1-2. I 87. As a result of those charges, Norsworthy entered into an agreed order on 7 June '30, 1990, Which suspended his medical license for six months followed by a period of probation of years; Exhibit 1c, Agreed Order dated June 30, 19.90. 88. In october 1990 the Board reinstated Norsworthy?s medical license and vacated the remaining two months of the suspension of his license. Exhibit 1C, 1 Supplemental Order dated October 31, 1990. I 89. In February .1993, the Board received a grievance from atwenty?one year old female patient alleging that Norsvvorthy, in addition to other sexual misconduct, 7 "While listening to her heartbeat, cupped and massaged. her breasts.? Exhibit 1B, Agreed. Order, page 2. If . 90.. As a result of those allegations Norsworthv agreed to extend his probationary period for an additional five years. Exhibit 1C, Agreed Order'dated August 15, 1993. 91. Beginning in 1993 and as a result of a recommendation from the Impaired Physicians Program, Orsvvorthy vvas required to have female staff members present during his examination of female patients-Exhibit lB, Agreed Order, pages 2-3.- 92. By order dated October 9, 1997, the Board granted Norsworthy?s request that his probation be terminated. Exhibit 1C, Order Terminating Probation. 16 I 93-. On February 1, 2000, however, the Board received a grievance from a local physician that orsworthy had conducted ?inappropriate? breast examinations and 0' ?unnecessary? pelvic examinations on ten female patients. Exhibit 1B, Agreed Order. 94. Several of those patients alleged that Norsworthy had fondled their breasts. 2 95. One patient alleged that around June 1998, orsworthy ?forcibly pulled I doWn her blouse and bra, exposing her breasts, without a nurse present,? and that he had also run a- stethoscope in circles around her breasts.? Exhibit 18, Agreed Order, pages Bull. I . 96.? A sister of another patient alleged that in 1995, NOrsworthy "fondled [the patient?s] breast in the, guise of an examination.? Exhibit 1B, Agreed Order, page 4. A 97. I A third patientaccused orsworthy of sexual misconduct around 23, 1997, aslhe exarnined'her for a sore throat, cough, chills, and an elevated temperature. According to the patient, NorsWorthy "lifted her top, removed her left breast from her bra cupped her breast in her hand, while saying he was still checking her heart and breathing.? Exhibit 1B, Agreed Order, page 4. I 98. Those allegations are strikingly similar to the allegations made-by the complainant in this action, but as found previously, the preponderance of the evidence does not support Norsworthy?s assertion that the complainant was aware of the earlier I allegations before she made her own accusations against him. 99. I A fourth patient accused Norsworthy of conducting a breast examination 17 - when she sought treatment around July 10, 1997, for-complaints of a non-productive cough; Exhibit 1133, Agreed Order, page 5. It 100. A fifth patient asserted that around June4, 1998, Norsworthy conducted examination in a manner that was very similar to the allegations of the complainant. Allegedly, "afterplacing the stethosc0pe to Patient K?s back, the licensee moved to her. I front and placed his hand inside her bra, cupping her left breast. The licensee then - moved his hand acress her chest and cupped her right breast. . . . Patient testified. that, while holding the stethoscope, the licensee placed hand inside of her left bra cup and cupped her left breast while holding the stethoscope.? Exhibit 1B, Agreed Order, I I page 5. .101. A sixth patient alleged that while being examined for lower. back pain that i did not include problems while urinating, Norsworthy ?pulled up her shirt and bra, exposing both other breasts and then felt each breast. Exhibit 1B, Agreed Order,_page 5. 102. A seventh patient alleged that during her examination at a hospital for paroxysmal tachycardia, orsworthy "pulled up her gown, undid her bra, and used his hand to displace her breast while listening with his stethoscope. The assisting nurse 9 testi?ed that she considered the licensee?s examination of this patient inappropriate because he held her left breast While placing the stethoscope above the patient?s breast; Exhibit 1B, Agreed Order, page 6 (eInphasis in original). 103. Finally, the Board alleged that orsworthy ?had inappropriate sexual 18 Contact with [an- eighth patient], a 17?year old female, during his examination of her. I Exhibit ?18, Agreed Orderepage 6. 104?. The allegations oi misconduct by those. eight patients are consistent with the complainant?s own allegation that Norsworthy impmperly touched her'breasts,? and the _.similarity .in'the allegations by several different patients show that Norsworthy.engaged in a common plan or scheme to touch the patient?s breasts While using a stethoscope to listen to the patient?s chest. 105. As a result of those latest allegations fo ?misconduct, the Board and Norsworthy entered into another agreed order whereby several restrictions were - placed upon his ability to examine female patients, including: ?the licensee SHALL OT conduct any examination of a female patient, involving areas of the patient?s body betvveen her neck and her knees, unless the examination is medically necessary and medically appropriate, an approved chaperon is present throughoutthe examination, . land the patient is properly draped.? Exhibits 113, Agreed Order, page 8 (emphasis in . original). - I 106. Norsworthy was required to obtain prior ?Board approval of all chaperons, who were required to: remain present and Within direct eyesight and Within clear hearing distance of the licensee the patient throughout the entire period the licensee is With a female patient; 2) accurately record the chaperon?s presence, or absence, for the entire duration of such patient interaction in the patient?s chart, or the patient record maintained by that clinical setting; 3) immediately notify the designated 19? contact person at the Board?s offices to report violationof the chaperon requirement . by the licensee.? 113, Agreed Order, page 9. I. d" I I 107. Norsworthy was also required under the terms-of- the Agreed Order to use. the chaperons on a rotating basis ?7 so that assigned approvedchaperons change frequently and so that nozchaperon acts as the exclusive chaperon for longer: than a . I thirty-day period. Exhibit Agreed Order, page 9. 108. On September 22, 2005, the Board agreed to end the restrictions placed upon orsworthy for the exanunation of his female patients. Exhibit 113,. Order I Terminating Agreed order. . - VI. ?Norsworthy?s Own Chaperon Policy 109. Even thoughat the time. of complainant?s app'omMent on February 20, I: 2007, Norsworthy was no longer subject to a Board order requiring him to use ,chaperons, he had instituted his own policy requiring the presence of a Vchaperon the I examination room during his treatment of female patients. 1 110. The chaperon policy that orsworthy utilized at the time of the complainant?s of?ce visit was not as rigorous as that required by the terms of the Board?s earlier orders. 111. Under Norsworthy?s policy, thechaperon was not required to be in the examination room tor the entire time that orsworthy was present with the patient, and the chaperon was not required to write on the patient?s medical chart that the chaperon had been present during the entire time Norsworthy?was with the patient. I 20? 112. In fact, Norsworthy?s policy was not put into Writing until a week after the complainant made" allegations against and the policy was drafted by the nurse also served as manager for his staff. I I 113. Although orsworthy asserted that his staff rigorously complied with I chaperon policy, the fact that the staff was no longer following the policy implemented at the direction of the Board and that Norsworthy?s policy Was not put into a written fOrmat until after the incident at issue in this action suggests that the policy itself was . informal understanding among the staff on how patient examinations should be conducted rather than a rigorouspolicy that the staff were required to follow. 114. ln order to comply with the Board?s earlier directive requiring chaperons, I .l Norsworthy had installed a series of flags at theltop of the door to each examination I room to alert the? staff of the Status of the patient in the room. Exhibit 18-. 1115. The staff had elected to continue to use the flag system, but there wasno specific requirementlunder Norsworthy?s policy that the staff use the flags. 1 116. If the nurse turned the black flag perpendicular. to the hallway wall, a female patient was in the examination room. 117. If the female patient would require enhanced privacy during an examination, the black and the white flags were turned perpendicular to the Wall. Exhibit 11. 118. If the green flag was also turned perpendicular, that patient was the next to Igbe examined. Exhibit 8. 21 119. Most?of female office staff were available to act as chaperons, and the staff was charged with the reaponsibility for implementing Norsworthy?s system. 120. Although a. female staff member was required under orpsWorthy?s policy to be present with him during "specific patient encounters,? a term that was not'defined under his policy, there was no prohibition against orsworthy entering the room if a: staff member was not present. 121. In addition, no one staff member was assigned to accompany Norsworthy into particular examination rooms or at specific times during the workday. 122. Instead, the system simply required that the staff collectively monitor Norsworthy as he proceeded from one patient examination to the next, and any available staff member was expected to go to an examination room when he enteredto a . _'treata female patient. I I 123. Thus, orsWorthy?s chaperon policy did not have a means to ensure that a staff member would be immediately available to accompany Norswoi?t?hy as he entered I . i an examination room that contained a female patient. 124. Under Norsworthy?s policy, the nurse who records the vital signs and I was not required to be the chaperon for a female patient when Norsworthy performs his examination. . VII. orsworthy?s Chaperon Policy was not Effectiire 125. Morse testified that she must have acted as the chaperon for orsworthy?s examination of the complainant based upon the notatiOns in the patient?s records.? 22 126. At the tOp of the section on the medical chart for the complainant?s rvisit on i 1' I February 20, 2007, Nurse Linda Morse wrote which stood for "Nurse ?Cihaperon-Linda Morse? and which was supposed to indicate that she was the nuISe 1' chaperon during orsworthy?s examination. Exhibit 23. 127. Morse, however, had no independent recollection of that day or?whether she acted as the chaperon for the complainant. - 128. Furthermore, Morse acknowledged that she wrote her initials on the chart atthe time she recorded the patient?s vital signs and whichwas prior to orsworthy?s examination of the patient. 2 . 129. In light-of the fact thatthe staff member who. wok the vital-signs. was not 4 I requiredalso to act as chaperon, Morse?sinitials on the patientchart signified nothing - more than the fact that she recorded the vital signs and - 130. Morse stated that the main reason she believed that she had served as chaperon during Norsworthy?s examination of the complainant was the fact that his dictated notes in the patient?s medical chart stated that Morse was the chaperon. Exhibit .23. 131. orsworthy, however, admitted that his dictated notes were not recorded contemporaneously with the examination but as much as forty-eight hours afterwards, and he did not require a chaperon to sign the medical chart to verify orsworthy?s statement that a particular chaperon had actually served in that role for the patient, a 23 I verification that was required under earlier restrictions imposed by the Board. Exhibit 1B, Agreed Order, page I 132. _-Norsworthy also testified that he had-no Specific recollection Of thepresence .- of a chaperondurmg the examination. . i i . 133. Thus, the only "verification?that Morse acted- as chaperon for the i complainant?s examination on February 20, 2007, is Norsworthy?s own dictated note stating that she did; Exhibit 23. i i 134.. The-members of Norsworthy?sstaff who testified at the hearing were 7' - uniform in their assertion that they took the chaperon policy seriously, used it on every occasion,and had never seen orsvvorthy- attempt to ignore or Icircumvent the policy. I i 7 135. Assuming, that the staff weretruthful in. their statements, Norsworthy engaged in the misconduct in this action not as a result of a plan orscheme to Circumvent his own chaperon policy, but simply as the result of circumstances in which he found himself alone Witha female patient Who had complaints that necessitated the .- examination of her chest with the stethoscope. 136. Instead of calling for a chaperon or waiting until one was available, orsworthy proceeded With theexamination and engaged in the same misconduct of cupping his hand under the patient?s breast While listening to her chest that had resulted in earlier Board actions against him. .137. I Thus, in Spite of previous sanctions and limitations on his medical practice and in Spite of Norsworthy?s own chaperon policy, he has shown by his conduct that he 24 does not have the capacity try-control his desire to engage in sexual'rnisconduct toward his female patients.= CONCLUSIONS v01? LAW - I .1. The Board has jurisdiction over this action pursuant to KRS 311.591 I K118311595.- a I 2. The administrative hearing in action was conducted pursuant to the i provisions of KRS Chapter 1313 and KRS 311.591. 3. - Under .KRS the Board had the burden to prove a - preponderance of the evidence that the allegations contained in the Complaint are true. 4. The Board has met its burden in this case. I 5. Pursuant to is subject to discipline he has A i "been found bv the board to have had sexual contact as defined in KRS with '1 apatient while the patient was under the care of the physician.? 6. ?Sexual Contact? is defined as ?any touChing of the sexual or other ultimate parts of a person done for the purpose of gratifying the sexual desire of either partyd? KRS 510.0100). 7. Under the American Medical Association?s Ethical Opinion 8.14 (March 1992), Sexual Misconduct in the Practice of Medicine, "sexual contact that occurs concurrent with the relationship constitutes sexual misconduct.? 8. Norsworthy engaged in sexual contact with a patient violation of 311.5956) by requesting the complainant to lift her bra and by placing'his hand on her '9 breast ?When such conduct was not necessary to listen to her chest with a stethoscope. 9. Pursuant to KRS a physician is subject to discipline if he has l-?engagedin dishonorable, unethical, or unprofessional conduct of a character likely to p? deceive, defraud, or harm the public or any member thereof.? 10. Under KRS 31159791), the term dishonorable, or unprofessional . conduct? includes ?conduct which is. calculated or has the effect of bringingthe mediCal profession into disrepute, including but not limited to . . any departure from, or failure to conform to the principles of medical ethics of the American Medical Association . 11. By that?same conduct cited above, Norsworthy violated the American, 1 Medical Association?s Ethical Opinion 8.14 and has engaged in dishonorable, unethical, if or unprofessional conduct of a diaracter likely to deceive, defraud, or harm the public or any member thereof in violation of KRS 311.595(9) and KRS 31159701).- 1 I 12. Norsworthy has engaged in repeated and similar acts of sexual. misconduct against female patients dating from 1989, and as a result, the Board has suspended his license, has imposed heightened standards of conduct, and has required the presence of chaperons with his female patients in an effort to ensure that the misconduct is not repeated. Yet, he engaged in the latest instance of misconduct when his staff?s busy work schedule presented himowith the Opportunity to be alone in the examination room With a female patient in spite of the efforts of his medical staff torimplement a policy to 26 I discourage such misconduct. Thus, the preponderance of the evidence supports the conclusion that orswort-hy is not subject to rehabilitation, and the appropriate I sanction for his misconduct in this action is revocation of his license to practice 'Inedicine. RECOMMENDED ORDER Based uponthe foregoing ?ndings of fact and conclusions of law, the hearing officer recommends that the Board of Medical Licensure revoke the license of Eric A. Norsworthy, M.D., to practice medicine in Kentucky. I NOTICE OF EXCEPTION AND APPEAL RIG-HTS Pursuant to KRS a party has the right to file exceptions to this recommended decision: .Acop?y ofthe hearing officer?s order 7 also be. sent to each party in the hearing and each party shall have ?fteen (15) days from the date the recommended order It is mailed Within which to ?le exceptions to the recommendations with'the agency head. A party also has a right to appeal the Final Order ofthe agency pursuant to 1313.140(1) which states: I 'All ?nal orders of an agency shall-be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by ?ling a petition in the Circuit Court of venue, as provided in the agency?s enabling statutes, within thirty (30) days after the final order of the agency is-mailed or delivered by personal service. If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides or operates a -. place of business. Copies of the petition shall be served by . 27 - the petitioner upon the agency and all parties of record. The petition shall include the names. and addresses of all parties to the proceeding the agency involyed, and a statement of the grounds on. which the review is requested. The petition shall be accompanied by a Copy of the final order. 3 Pursuant to KRS "SuCh.reViewv [by the Circuit court] shall not i constitute an appeal but an original action.? Some coliirts have interpreted this language _.tO mean that summons must beserved upoz?ling an appeal circuit court. - so RECOMMENDED this 0707 day of May, 2008. - THOMAS J. I - HEARING OFFICER I . DIV. OF HEARINGS . OFFICE OF THE ATTORNEY GENERAL 1 . .1024 CAPITAL CENTER DR, STE. 200 FRANRFORT, KY 40601?8204 (502) 696?5442 (502) 573-1009 FAX 28' 7 CERTIFICATE OF SERVICE 0 I i?bereby certify that the original Of this RECOMMENDATION was mailed this I - day Of May, 2008, by ?rst-Class mail, pOStage prepaidBOARD OF MEDICAL LICENSURE OFFICE PARK STE 113 310 WHITTINGTON PKWY LOUISVILLE KY 40222 for filing; a true copy was safe by first~c1aSS mail, postage prepaid, to: DAVID A LAMBERTUS ATTORNEY AT LAW 600 MAIN ST STE 300, LOUISVILLE KY 40202 i KAREN QUINN ASSISTANT GENERAL COUNSEL. . I KY BOARD OEMEDICAL LICENSURE . HURSTEOURNE OFFICE PARK STE 113- .310 WHIITINGTON PKWY a LOUISVILLE KY 4.0222 n. - DOCKET COORDINATO I 070511FC 29 COWONWEALTH OF KENTUCKY 1 I BOARD OF MEDICAL LICENSURE -- SEP '22 2005 CASE NO. 765 - ADMINISTRATIVE ACTION No. INRE: THE. LICENSE TO PRACTICE MEDICINE IN THE COMMONWEALTH OF KENTUCKY HELD BY ERIC A. NORSWORTHY, M.D., LICENSE NO. 20834, 1219 NORTH MAIN STREET, BEAVER DAM, KENTUCKY 42320 I I ORDER TERMINATING AGREED ORDER, At its August 18, 2005 meeting, the Kentucky Board of Licensure (?the Board?), acting by and through its Hearing Panel A, considered a request by the licensee to terminate the Agreed Order entered into by the parties on June 10, 2002. In addition to the Agreed Order and the request, the Panel members reviewed a July 25, 2005. memorandum by the Board?s General Counsel; letters from Burns M. Brady, M.D., Medical Director, Kentucky PhySicians?Health Foundation (KPHF) dated April 14, 2004 and July 28, 2005; the licensee?s KPI-IF contract dated September 11, 2002; a 25, 2004 letter from Arthur L. Burrows, and, a March 14, 2005 Compliance Report by George H. Stewart, Medical Investigator. The Panel also heard from Dr. Brady and the licensee. Having considered all information available and being sufficiently advised, Hearing Panel A GRANTS the request and ORDERS that the Agreed Order filed use 10, 2002 BE AND IT Is so ORDERED on this _22ndday of smut. 2005. DONALD SWIKERT, MD. CHAIR, HEARING PANEL A Certificate of Service I certify that the original of this Order was delivered to C. William Schmidt, Executive Director, Kentucky Board of Medical Licensure, 310 Whittington Parkway, Suite 1B, Louisville, Kentucky 40222 and a copy was mailed, postage prepaid, to Eric A. Norsworthy, M.D., 1219 North Main Street, Beaver Dam, Kentucky 42320 on this 22951 day ofSept. 2005. Wm)? C. LLOYD VEST II General Counsel Kentucky Board of Medical Licensure - 310 Whittington Parkway, Suite 1B Louisville, Kentucky 40222 (502) 4297150 to COMMOWEALTH OF KENTUCKY BOARD OF MEDECAL LICENSURE CASE NO. T55 ADMINISTRATIVE ACTION NO. IN RE: THE LICENSE TO PRACTICE TH THE COMMONWEALTH OF KENTUCKY HELD B?r' ERIC A. LICENSE NO. 213334, NORTH MAIN STREET, BEAVER DAM. KENTUCKY Meal} ORDER DENYING REQUEST TO AGREED At its August 19.1034 meeting, the Kentucky- Eaat'd nf Medieal Lieertsure {hereafter ?the Beard"), acting by and thruugh its Hearing Panel A. eensitlered the licensee's request te terminate the Agreed Order filed ll'l this ease an June It), 3.1302. in aeltlitian te that request. the Panel ret-ieweet a July tr?i. ltll'Jrl memorandum by the Eearrl?s Creneral Counsel: the Agreed Order: letters hem Burns M. Brant}:+ M.D., Medieal Direetnr, Kentucky Physieiatts Health Feuadatien (?the Feuntlatien") dated April 14 and Jul}.r 15. RUM. which included aenp)r at the lieensee?s Feuneiatten enntraet and a report hy Arthur L. Eat-rears, lrs. and, C?timplianee reparts dated June 3t}, 2002. Mareh Er. and 8,3103. The lieensee was present far the meeting, but was net asked an address the Panel. Having eensidered all of the infant-nation available as it and being sult'ieientl}t advised, Hearing Panel A ORDERS that the licensee's request is DENIED. Hearing Panel FURTHER ORDERS that it will net ennsielera sitnjlar request prim to its August EDGE meeting; if the licensee makes a similar request at that or a subsequent meeting, the Panel will exercise its discretion based upon all information available to it at that time. SD DRDERED on this 7th day of 4.. DONALD MD. CHAIR, PANEL A getti?cate of Service I certify Lhat the original of this Drder was delivered to E. William Schmidt, Executive Director. Kentucky Board ofi'vied'tca] Liceosure, 31D Whittington Parkway, Suite 113, Louisville, Kentucky MEI-1. and a copy was mailed, postage prepaid, to Eric Norstvorthy, lvl.D.. 1319 N. Main Street, Beaver Dam, Kentucky 4232f} on this mday of Soptemher 2034, CL U??w C. Lloyd ?v'est II General lCounsel Kentucky [iota-d of Medical Licensure 31f] 'Whittington Parkway, Suite IE Louisville, [Riorttucl-t}t l-J FIELD OF RECORD cs newness BOARD OF MEDICAL I CASE KO. 765 ND. 1N THE LICENSE TO PRACTICE LN THE OF KENTUCKY HELD ERIC A- LICENSE ND. 29334, 1219 NORTH STREET, BEAVER BALL KEPHUCKY 42320 AGREED ORDER ISense new the Enamel-av Beard nf Medical Licensure [hereafter ?the Bear "fa, acting by and trench its Hearing Panel Al and Eric A. tan, and+ hased upcn their mutual desire tn fully and ?nally resolve this pending Ccnaplaint withnut further cvidcn?arv proceedings, hereby INTO the fellening AGREED DRDER: OF FACT The parties stipulate the fellening facts= which serve as the factual bases far this Agreed Under: 1. At all relevant times, Eric A. MD, was licensed by the Beard ta practice medicine in the cf 2. In 1939 and 1991}, the Beard conducted an investigaticn, fellcwing a grievance that the licensee had acted ittapprepriatel},r during his physical essmina?cn cf a 16-year female patient. The patient and her ninther alleged that the licensee: a) had her pull her underwear dawn prcper draping er the presence cf a nurse; made an comment shunt her underwear; and._ c} Simply lifted hEr breast cut cf her bra and fondled hm breast in a vvav an ether dectcr had done. The Board's investigaan alsc allegatiens by twe- ether Tamale patients that the licensee had sexual intemeurse with them after giving them same medication- The Board and the licensee resolved that investigation informally by entering into an .?tgrEed Order on June 30. 1990. Under the terms of the Agreed Drder. the licensee's medical license was suspended for a months. followed by a probationary period of 4 is years. Linder the terms of probation. the licensee was required to: a] condone with with a therapist approved by the Board. with reports; h} pay SSUU in costs; and1 c] not violate the Kentucky Medical Practice Act. By Supplemental Order dated Detoher 3 . l?ElEl?, the Board granted a request by Burns ltd. Brady, M.D., Medical Director. Kentucky Physicians Health Foundation Impaired Physicians Program that the 5?month suspension he terminated two months early. Under the Supplemental Drder. the licensee was required to comply with the original terms of probation and to enter into a contractual relationship with IPP, with quarterly compliance reports to the Board. in February 1 993. the Board received a ng? vance ?'om a 11-year old female patient that, after she presented with a bladder infection the licensee had: a} partially tmdressed her; h} embraced her; c) questioned her about her sea: life; d} discussed sexually transmitted diseases and suggested a pelvic cream; and, c] while listening to her heartbeat, cupped and massaged her breasts. Following this grievance. the licensee entered Lady of Peace for evaluation and treatment. - His diagnosis was ?adjustrnent disorder with depressed mood and alcoholism." Dr. Brady reported that no was noted and it was felt that the sexual problem was not the primary diagnosis. made the following recommendations: at) continue physicians therapy group; is) beg-in individual therapy widt John Walsh; c) marital therapy at {Jar Lady of Peace twice a month; d) outpatient care at Our Lady of Peace; e] requirement that female staff member be present for all exams on femaie patients; f} proctorship by two local physicians; and, g} appropriate Clny. On August 17", 1993. the parties entered into another Agreed (Cinder, extending the terms of the original Agreed Order for another ?re {59 years, through 2009. Go January 19?, 1995, the parties enteted into a Second Supplemental Agreed Order of Probation, to address a report that the licensee had engaged in inappropriate prescribing. This Order continued the previous terms of probation and added the following conditions of probations: e) maintain a controlled substances log; t] re?ain from calling in any controlled substances preacriptions; and, g] succ?sfully complete the University of Kentucky mini-residency on ?The Use and Prescribing of Controlled Substances.? Urn February l: 2909, the Board received a grievance from another local physician, alleging that the licensee had conducted uinappropriate" breast examinations and ?hutnecessary" pelvic examinations on patients at Perdue Wellness Center, during the period 1995 through 1993. Following the Board?s investigation its inquiry Panel issued a Complaint melting the following allegations: a. strand .l one 993., the licensee fondled Patient breast and stood with his penis against her leg, during a ?driver?s physical" exam. Patient testi?ed that the licensee forcibly pulled down her blouse and bra, exposing her breasts, without a matte present. Patient E. testi?ed that the LJJ licensee had alsn run a stethescnpe in circles arennd her breasts. Patient else testi ?ed that, during that time, the licensee steed se clese tn her that his eretch was pressing against her knee; Accerding te Patient F?s sister, Patient treatment item the licensee for lewcr back pain areund 1995; according to the sister, Patient had stated that the licensee fendled her breast in the guise cf an caarninatien. Patient has testi?ed that the licensee did net tench her breasts inapprepriatel},t as her sister had claimed. Patient testi?ed that, during the esantinatinn, the licensee had steed elese eneugh to her that his creteh was pressed against part cf her bndy. Around lIiilcteber It}, 1996, Patient (3, a 22?year eld female, snught a preSeriptien ?ent the licensee at Wellness lClinic te treat her urinary tract infectien Even tbnugh the nursing staff that the patient was suffering Frent and plainljt stated she did not want a pelvic esarninatinn, the licensee cenducted a pelvic esantinaticn upen her. . Around January 23, IPPT, the licensee inapprepriately touched Patient breasts after she presented for treatment cf a sere threat, eengh, chills and elevated tetn peratnre. tn Patient H, the licensee lifted her tap, retrieved her left breast her bra and eupped her breast in his hand, ts'hile saying he was still checking her heart and breathing. Arnund July ill, 199?, Patient l, a 15?year eld child, presented fer treatmth nt' dssuria, complaining of aburning sensation during urinatien. Witheut any histerjt nf pain, Traginal discharge, er sexual in activity, the licensee performed pelvic and rectal examinations on this patient. The licensee has indicated that he would present testimony from this patient?s mother, who had reported 1hat the child had been sexually active. but requested that such information not be included in her medical record. Around Jul}.r ID, 199?, Patient] presented liar treatment at the Perdue Wellness Center, with complaints of URI non-productive cough. The licensee conducted a breast examination. Around Jone 4, 1998, Patient K, a HUI-pear old female, presented at the Perdue Wellness Clinic with complaints of ?u-like After placing the stethoscc-pe to Patient K's back, the licensee moved to her front and placed his hand inside her bra, cupping her left breast. The licensee then moved his hand across her chest and cupped her right breast. Patient testi?ed that the licensee did net touch her right breast during this examination. Patient EL testi?ed tiran while holding the stethoscope, the licensee placed his hand inside of her left bra cup and cupped her left breast while holding the stethoscope. Patient testi?ed that. when he was removing the stethoscope ?oor her bra, the licensee brushed his hand across her left breast. Around December it}, 1993. Patient L. a 20-year old female. had lower hath pain without problems urinating. Ell-Thilc she was laying on the examination table. the licensee pulled up her shirt and bra. exposing both of her breasts and then felt each breast. Patient testi?ed that, during the examination, the licensee touched a on her breast with his ?nger and asked what it was. Around June 5, 199?, the licensees 19?year old babysitter was in the lL'llbio County Hospital for treatment for paroxysmal tachycardia. During his examination of this patient, the licensee pulled up her gown. undid her bra and used his hand to displace her breast while listening with his stethoscope. The assisting nurse testi?ed that she considered the licensee?s examination of this patient inappropriate because he held her le? breast while placing the ste?dioseope the patient's breast. Around November 199?, the licensee had inappropriate sexual contact with Patient N1, a 19?year old female, during his examination of her breastfs}. In late 1999, the Perdue Wellness Clinic laminated its contract with the licensee based upon the ?ut?eight? of complaints received from employees at that plant regarding his examination oftbem. The relevant information in this ease was reviewed by two Board consultants. 1While each consultant questioned the medical necessity of one or more of The examinations done by the licensee, they generally agreed that a cardiac examination was an appropriate medical choice available to the physician in the majority of cases presented for review. Neither saw any information that the licensee was actively fondling or massaging any patient?s breast Each consultant noted that, during a cardiac examination, there is some exposure of the patient?s hreast[s) and the physician may often he required to displace the breast with a hand to be able to properly evaluate the patient's heart and breath sounds. They each agreed that, if certain hypothetical information presented by the licensee?s counsel was true, that would impact their opinions. Each consultant believed it 1would be reasonable for the Board to require some supervision, such as an approved chaperon, during the licensee?s examination of sensitive areas of female patients. to. The licensee has indicated he would present evidence supporting his claims that each examination was medically necessary and appropriate. He would also present et'idenoe that he employed a chaps-ton to be present saith him during; such examinations and the chaperon was present during all of the examinations described in the Complaint. n. The evidentiary hearing Was stopped midway through the testimony so that the parties could informally resolve the Complaint with this Agreed Order. STTPULATED DP LAW The parties agree to the following Stipulated Conclusions of Law, which serve as the legal bases for this Ageed Order: 1. The licensee?s Kentucky medical license is subject to regulation and discipline by ?'ris Eo?ri 2. While the evidence did not establish medically inappropriate touching in the cases cited in the Complaint, the questionable medical necessity of various examinations conducted by the licensee provides an ct'identiary basis for a ?nding of a violation of the Code of Ednes of the Ameri can Medi cal Association neenrdingly, there are legal grounds to support disciplinary action against the licensees medical license, pursuant to FIRE 31 as illustrated by HRS 3i 3. Pursuant to KRS 31159105} and 213] KAR SHEER, the parties may fully and ?nally resolve the pending Complaint nithont a complete evidentiary hearing, by entering into an informal resolntion such as this Agreed Drder. AGREED ORDER Based upon the foregoing Stipula?ons of Fact and Stipulaied Conclusions of Law, and, based upon their mutual desire to fully and ?nally resolve the pending Complaint 1Without farther evidentiary proceedings, the parties herehy ENTER the following AGREED ORDER: 1. The license to practice medicine inthe Commonwealth of Kentucky held by Eric A. Norsworthy, MD, BE SUBIECT to the terms and conditions of this AGREED ORDER for a period of?ine years, unless otherwise ordered by the Panel; 2. During the e?'eetiye period of The Agreed Order, the licensee is subject to the following terms and eonditions: a. The licensee SHALL NOT conduct any examination of a female patient, involving the areas of the patient?s body between her neck and her knees, unless: i. the examination is medically necessary and medically appropriate; ii. an approved chaperon is present throughout the examination; and, the patient is properly draped. b. Any chaperon utilized by the licensee must he appmt'ei in savanna, the Board or its staff and must agree in suiting to 1] remain present and within direct eyesight and within clear hearing distance of the licensee and the patient throughout the entire period The licensee is with a female patient; 2} accuratelyr record the chaperon?s presence, or absence, for the entire duration of such patient interaction in the patient?s chart, or the patient record maintained by that clinical setting; 3} immediately notify the designated contact person at the Board?s el?ces to report any violation of the chaperon requirement by the licensee. ?the licensee ma},r submit and the Board or its agents may apposite more than one chaperon to fulfill this requirement. The licensee shall he solelyr responsible for payment of the costs of such chaperon?s}. c. The licensee shall utilize Eppm?r?Ed chaperons on a rotating basis so that assigned approved chaperons change frequently,F and so that no chaperen acts as the exclusive chaperon for longer than a thirty?day period. Upon request, the licensee shall immediately make available any requested patient charts for female patienE andt'or any documentation shout patient contacts outside of the of?ce. The licensee shall also make available, upon request, the chaperonfs) for interview by Board agents regarding his compliance with that condition. c. He shall maintain his contractual relationship with and shall fully comply with all terms and conditions of that contractual relationship, until released from such requirement by the Panel. The terms and conditions of that contractual relationship shall he determined by the Medical Director, in the exercise of his dist-action, after completion and review of appropriate evaluatiou{s}. He shall continue to engage in therapeutic treatment as directed by the Medical Director, IPP and shall ?dlv comply,r with all treamient directives, including medi cation directives, until released from such requirement by the Panel. As part of this restriction, the licensee shall arrange for each to provide quarterly mitten reports to the Medical Director, detailing his compliance with treatment directives, his can-eat diagnoses, his current plan of treatment and his current prognosis. Within sis. months of the ?ling of this Agreed Drder, the licensee shall successfully complete, at his expense, the course ?Maintaining Proper Boundaries" at the Twi'antierhilt Universit}F Medical Center. . The licensee may not ask for termination of this Agreed lDrder for a minimum period of two years from the date of its ?ling. The Panel will only consider such a request, after the conclusion of that two?veer time period, if there have been no additional grievances regarding inappropriate sexual touching by the licensee and The request is accompanied by a favorable recommendation by the Medical Director, However, the burden of persuasion for such a request lies with the licensee and the Panel retains full discretion to grant or deny such a request 10 i. The licensee shall net 1riclate any cf the prcyisicns 31 1.595 nr 31 1.591?. 3. The Panel Chair shall have the autherity to issue an Emergency Order cf Suspensinn er Restricticn immediately, after an expat-Ia presentaticn by Beardis ccunsel, if the Chair there is prchable cause tn believe the licensee has viclated any ccnditicn set cut in this Agreed Order and the idolaticn occurred aiter the net- nf?ling Agreed cider.? Panel Chair shculd issue such an Emergency Order, the parties agree that a yinlaticn cf any term nr ccnditinu cf this Agreed Order would render the licencee?s practice an immediate danger in the health, welfare and safety cf patients and the general public= pursuant tc K113 311.592 and 133,125; acecrdingly, the enly relevant questiun any emergency hearing ccnducted pursuant tn REE 1313-115 wculd be whether the licensee viclated a term cr ccnditicn cf this Ageed Order; 4. The licensee understands and agrees that any yiclatic-n cf this Agreed Order wculd alsc separate grcirnds disciplinary acticn against his medical license, including reyccaticn, pursuant tn HRS ac cn this is: day litany, aces. FOR THE LICENSE-E: ERIC A. If the Beard receives any grievance alleging that Dr- has yinlated any prcw'sicrt cf KRS 31 1.393 andinr 31 1.593, the Boards Panels retain the legal authnrity tn investigate die gicyaneeEs} and the legal tn take any acticu regarding his medical licen sc= pursuant tu HRS 31 1.591(3) and 31 1 .391- ll FOR THE BOARD: EN '33? ms r: SEL FDR DR. maswommy C. LLOYD VEST 1T Gangral Cannac] Kentucky Board of Medical Licensure 310 Wl?tlinginn Suite 113 L?uigville, Kentucky 40222 (502} 429?3045 WAIVER UF RIGHTS 1, Eric A. Noteworthy, MEL, aco presentl}r the Respondent in Kentuckyr Board of Medical Licensure 1Ease No. 7'65. I understand than under 2131 KER 9:032, I must waive certain rights if I wish to resolve this matter by informal diapensation. Accordingly, I WMVE my right to raise any constitutional, statutory or common law ohjection{s} I may have to the Hearing Panel rejecting the proposed informal dispensation or to the curtailment of such a settlement by the Board?s General Counsel. Furthennore, it" the Hearing Panel accepts the proposed Agreed Enter as submitted, I my right to demand an hearing or to raise additional constitutional or SIBtIlt?l'jf objections in this matter. However, if the Hearhtg Panel should reject the proposed Agreed "Sheer= I understand that ?nthet proceedings will he conducted in accordance with KRS 311.5313 at sea. and I will have the right to raise an},F objections normallyr at'aijahle in such proceedings. Executed this 211' day arapeisooa. ?ab ERIC A. MI). Respondent OF KENTUCKY STATE BOARD LICENSURE CASE Tiff]. TIES IN RE: THE LICENSE IN THE DP IENTUCKY HELD BY ERJC A. hill, LICENSE ND. 20334, 1219 NORTH MAJN BEAVER KEIIUCKY ?12329 Comes new the Complainant Preston P. Nunnelley, M.D., Chairperson of the Kentucky Board of Medical Licensure?s lntpairgtF Panel B, and on behalf of the Panel, which met on October 19, 2909 and July 26, ?1091, states for its Complaint against the licensee, Eric A. Horse-ooh}, M.D., as follows: 1. r'tt all relevant times, Eric A. Tiersworthy, MIL, was licensed by the Board to practice medicine within the Commonwealth of Kentucky- 2. The licensee?s medical specialty is Family Practice. Pursuant to various Agreed Clrders in Case No. 386, the Board suspended the licensee's Kentucky medical license for six months and placed it on probation for approximately ten years, beginning on October Til, i999 and ending on June 30, 2909, because the licensee had inappropriate scandal contacts with four of his female patients?Patients 4. Chi Februaryr 1, 2909, the Board received a letter, dated .lertuar},r 31, 2990, ?em Charles Wong, Phil, DEL, reporting the licensee?s inappropriate conduct with female patients that he treated at the Perdue Wellness Clinic in lClhie County (hereafter ?the Perdue Clinic?), including the ?inappropriate? breast exams and ?unnecessary? pelvic exams he performed on them, from 1995 to 19.93. Ur The Board?s investigation revealed the licensee?s inappropriate conduct with twelve [12) other female patients?Patients The licensee had inappropriate sexual contact with 9 of the 12'. patients from 1995- 1993; Le, during the period when his Kentuckyr medical license was on probationary andr'or supervisory status under the Board's Orders anchor the Letter ofi?tgreement that are ?led in Case No. 335. Further: the Board?s investigation revealed the following additional information about the licensee?s inappropriate conduct with the IE female patients: H. In or around June 1933: Patient E, then a school bus driver= presented at the licensee?s office for a ?driver's physical." During her visit, the licensee fondled Patient Eis breasts and made an obvious move to stand with his penis pressed against her leg. in or around 1995, Patient sought medical treatment from the licensee for her back pain. The licensee told Patient that he would have to give her a physical and, under the guise ofeaatnining her, fondled her breast. [in or around l[Itctober 10. 1995, Patient G. a supervisor at the Perdue Clinic. presented at the heartsee?s office at the clinic, seeking only,r a prescription from the licensee for her twitter},r tract infection. At that time, Patient was 22 pears old. She was suffering from low-back pain and dvsuria (Le. problems urinating). Patient. G's urine sample revealed blood in her urine. In response to this information the licensee told Patient to disrobe from the waist down so he could perform a pelvic examination on her. The licensee insisted= over Patient G?s objections, that a pelvic examination was necessary when, in fact, it was not. Under the guise of performing a necessary pelvic examination, the licensee inappropriately touched Patient G?s pelvic area. {in or around January 23, 199?: Patient 1-1, then a 23-year-old employee at the Perdue Plant, presented at the Perdue .Clinic seeking medical treatment for her cold. art that time= she was suffering from a sore throat, cough. chills, and an elevated temperature. In response to this information, the licensee placed a stethoscope on Patient H?s heels and told her to inhale and exhale so he could check her breathing. Patient did so. The licensee then moved around to the front of her chest, lifted her top, removed her left breast from her bra and cupped it in his hand, while Saying he was still checking her heart and breathing. The licensee inappropriately touched Patient H?s breast, under the guise of' conducting a routine examination (Le. listening to Patient H?s heart and lungs]. On or around July 113? 1997, Patient I. then a 15?year?old child, presented at the h-lorgantuwn Area Medical Clinic {hcrca?er "Morgantown Clinic") with a history of dysuria and complaining of a homing sensation during urination. Patient 1 had no complaint of abdominal pain, vaginal discharge, or sexual activity. In response to this information, the licensee performed inappropriate and unnecessary rectal and pelvic examinations on Patient I. The licensee?s touching of these areas was inappropriate. Do or around July 10, 1997, Patient J, presented at the l?crdue Clinic with complaints of non productive cough-" in response to this information, the licensee performed an inappropriate and unnecessary breast examination on her. There was no medical reason for him to touch Patient J?s breasts. {in or around .Tune 4, 1993, Patient K, then 30 years old and an employee of the Perdue Plant, presented at the Perdue Clinic seeking medical treatment for ?the flu.? At that time, her chief complaints 1were headache, sore throat, and ?aching all over.? In response to this informntion, the licensee placed his stethoscope on Patient K?s hack and listened to her hrea?iing. The licensee then moved around to the front at" her chest and placed his hand inside her bra, cupping her left breast. Thereafter, the licensee moved his hand across her chest and cupped her right breast. The licensee inappropriater touched Patient Kis breast, under the guise of" conducting a routine examination. On or around December 10, 1993, Patient L, then 21] years old and an employee of the Perdue Plant, presented at the Perdue Clinic with a chief eompiaint of back pain withoUt problems urinating. In response to this information, the licensee told Patient to lie down on the examination table. He then pulled her blouse and bra up, exposing both of her breasts, and started feeling her breast. While feeling her breasts, the licensee told Patient that he was checking.r for an irregular heartbeat or heart murmurs. The licensee inappropriately touched Patient L?s breasts, under the guise of conducting a routine examination. Do or around June 5 or 6, 199?, when he was making hospital rounds at Ohio County Hospital, the licensee examined Patient M, then a lT?year?old child, hospitalized for {paroxysmal tachycardia) and Patient N, another child who was, at that time, 1? years old- 1 When the licensee examined the teenager Patient hi, he did so by ?pulling up her gown, undoing her bra [he did this} and displacing her breast with his hand dc placing the stethoscope to listen." When the licensee examined, in November 1997, the heart and lungs sounds of the other teenager, Patient N, he had inappropriate sexual contact with her in the same way he had inappropriate seaual contact with Patient M, On or around November El], 199?, the licensee agreed, in light of patient complaints of' inappropriate examinations by him, that he would not perform breast and pelvic examinations when he was working in the Perdue and Morgantown clinics. Est that time, the licensee further agreed to review the matter complained of with Burns Brady, Medical Director, Kentucky Physicians Health Foundation?impaired Physicians Program, and to follow whatever direction Dr. Brady suggests. The licensee violated this agreement. [in or around Detober 1999, Patient presented at the Perdue Clinic with a chief complaint of abdominal cramping and bleeding. In response to this information and in violation of' his November ED, 1997 agreement, the licensee, who was then working at the Perdue Clinic, performed a pelvic examination on Patienthi at said clinic. In or around January members of the Ohio County Medical Societlehio County Hospital's Physician Hospital lLilrganiaation asked the licensee to LII ll}- 11. ll. 13. resign Frern the Perdue Clinic. Subsectuentlyi the licensee ?dropped out? of the Perdue Clinic for reasons that included his performing pelvic examinations after he was speci?callyr told that he was no longer allowed to perform such examinations at that clinic. Do or around Ma},r when 15-year?old Patient 0 Was an ittupatient at Ohio County Hospital, the licensee examined Patient in an inappropriate manner by going up under her gown with his Stethoscope under the guise of listening to Patient D?s heart to chest: for a heart murmur after he had looked at the in her femoral artery. On or around May 29, 2001, while 15-}rearsold Patient 0 was still an in-patient at Dhio Coonty Hospital, the licensee embarrassed and upset Patient inappropriater exposing hoth ofPatient D?s hreasts and pubic area while Patient D?s lT-jrear?old brother and her father were in Patient D's hospital room. The licensee inappropriately ?blocked? Patient D's mother so that she could not see what or how he was examining Patient 0 when Patient was being ?examined? by the licensee at his office, in or around the period October? hlovemher. 20GB. When Patient G's mother tried, at that time, to get next to him to see: the licensee would bloth her attempts hp leaning over Patient as if he was trying to lie down on her. On or around lune 2961: while Patient was an at Ohio CountsI Hospital, the licensee inappropriater touched Patient Pis breast. under the guise of listening to her heart. I4. 115. 13. IQ. 20. The licensee has engaged in dishonorable, unethical, or unprofessional conduct of a character likelyr to deceive, defraud, or harm the public or any member thereof. The licensee has had inappropriate ?seaual contact," as that term is de?ned in RES 5 ld?i??j, with patients while the patients were tinder his care. The licensee has engaged in ?sexual misconduct? as that term is de?ned in the American Medical Association?s Code of Medical Ethics Current Opinion 3.14: ?Scams! contact that occurs concurrent with the physician-patient relationship.? The Principles of Medical Ethics. which have been adopted the amanean Medical Association and this Board, are ?standards of conduct which define the essentials of honorable behavior for the physician.? The licensee has engaged in conduct that violates Principles I, and of same; he has engaged in the inappropriate conduct of failing to respect human dignity, failing to deal honesd)r with his patients and colleagues, and failing to respect the rights of his patients. The licensee has failed to conform to the acceptable standards of medical practice in Kenniclcy by performing unethical creams on patients. By his conduct, as discussed herein, the licensee has violated KRS 311.5935}, teas st resists}, ans as illustrated by arts tens 31 5951112] and EAR 9:005 [Ufa]; and HRS Accordingly there are legal grounds for the Board to impose disciplinary sanctions against the licenseels Kentucky medical license under said provisions. The licensee is directed to respond to the allegations delineated lit the Complaint within thirty {30} days of service thereof and is further given notice that: t?Iis failure te respend may he taken as an admissicn ef the charges; {is} He may appear alene er with eeunselt may cress?esamine all presecutien witnesses and effer evidence in his defense. 21. NOTICE IS HEREBY GWEN that a heating en this lfjcenplaint is scheduled fer January 10 d: 11, at the Kentucky Beard cf Medical Licensure, Hurstheume Office Perl-g 31!] Whittingten Parkway, Suite 113, Louisville, Kentucky 40222. Said hearing shall he held pursuant te the Rules and Regulatiens efthe KEnl?ucky Beard ef Medical Licensure. This hearing shall preceed as scheduled and the hearing date shall enly he medi?ed by leave ef the Hearing foicer upen a shewing ct" geed cause. Cemplainant prays that apprepriate disciplinary aetien be taken against the license re practice medicine held by Eric A. Nerswerthy, full]. This day efSeptemher, 200i. ?uent PRESTON P. measure? MD. Ct IAIR, memes Pas-"st. a QERTFFICATE ct? seawcg 1 certi?r that the eriginal ef this (Scrap-taint was delivered te Mr. C. lhhlilliam Schmidt, Executive Directer, Kentuckj.? Beard ef Medical Licensure= 31ft Parkway, Suite Leuisville, Kentucky and cepies were mailed; pestage prepaid te Ditiisien cf Administrative Hearings. 1024 Capital Center Drive, Suite 21310: Frankfurt, Kentucky asset-sacs; Jasen Ft. Segreleen= Earp, Keptuck}? Heme Life Building, 23? Seuth Fifth Street, Leuisville, Kentucky #313202: and a cepy was mailed via certified mail to Eric A M.D., 1219 North Main Sirest, Esaver Dam, Kentucky 423213 m1 this the Eat}: day if September, fl. 2" YFDEEISFE PATNE Assistant General Counsel Kentucky Board 01" Medic a! Lice-n sun: 310 Whittingtun Parkway, Suite 1B Louisville, Ksntusky 46222 (5112 ·' ..... C!rnmmnnw:ealtI, nf i\:enf1t.cky REC!IVED Qtnurt nf 1\pp:eals DEC 11 ·2008 K.B~M.L. NO. 2008-CA-001717-I '!!. " KENTUCKY BOARD OF MEDICAL LICENSURE APPELLANT ,"'!' v. APPEAL FROM JEFFERSON CIRCUIT COURT ACTION NO. 08-CI-008166 ERIC C. NORSWORTHY APPELLEE ORDER ** ** * * BEFORE: CAPERTON, KELLER, AND TAYLOR, JUDGES. Before the Court is appellant's motion for interlocutory relief from a temporary injunction of the Jefferson Circuit Court. Our standard of review for a motion for interlocutory relief prior.to a final judgment is abuse of discretion. CR 65.07. Injunctions are appropri~te when "it is clearly shown by verified complaint, are being or will be violated by an. affidavit, or other evidence that the movant's rights . adverse party and. the movant will suffer immediate and irreparable injury, loss, or '' ·~· damage pending a final judgment in the action; or the acts of the adverse party will tend to render such final judgment ineffectual." CR 65.04. Having reviewed the appellant's motion and the appellee's response to said 1 • :. :_f.': f.i.,, motion, the Court has determined that an abuse of discretion occurred when the trial court determined th.at the immediate an~ irreparable injury necessary for an injunction was ·~ . present in this case. It is therefore ORDERED that appellant's motion for relief is CASE NO. 08-CI-8166 JEFFERSON CIRCUIT COURT DIVISION ELEVEN ( 11) ERIC A. NORSWORTHY, M.D. PETITIONER lf!CllVED vs. · FINDINGS OF FACT AND CONCLUSIONS OF LAW KENTUCKY BOARD OF MEDICAL LICENSURE SEP o2;2ooa K.B.M-L · 1 . 'RESPONDENT *************** This matter comes before the Court on the Petitioner Eric A. Norsworthy, M.D.'s ("Dr. Norsworthy") CR 65.04 Motion for a Temporary Injunction to prevent the Respondent Kentucky Board of Medical Licensure ("KBML" or "the Board") from enforcing an Order of Restriction against his medical license entered on July 24, 2008 and scheduled to take effect August 26, 2008. Oral arguments were presented on August 25; 2005. After carefully considering the arguments of the parties and a study of the pleadings and record and relevant case and statutory law, the Court will grant the motion. FINDINGS OFFACT On December 4, 2007, the KBML isued a complaint against Dr. Norsworthy charging him with committing sexual misconduct with a patient by inappropriately touching her breast during an examination. After an administrative hearing held on May 7, 2008, a hearing officer concluded Dr. Norsworthy did so commit sexual misconduct in violation of KRS 311.595(5) and (9) and recommended in his Findings of Fact, Conclusions of Law and Recommended Order on May 23, I 2008 that the doctor's license be revoked. KBML's Panel B met on July 17, 2008 to review the case and recommended in its July 24, 2008 order that Dr. Norsworthy's license not be revoked, but that he be prohibited from ever examining female patients again. As the Court understands the facts, Dr. Norsworthy was indicted in Ohio County Circuit Comi on a nine-count felony indictment for alleged violations of KRS 218A.202 concerning possible improper KASPER record requests; further, Dr. Norsworthy has also been named defendant in a civil suit filed by the grievant herein in the Ohio County Circuit Court. As for the circumstances giving rise to the complaint against Dr. Norsworthy, on February 20, 2007, the grievant went to Dr. Norsworthy's office for treatment of a cold and a rash on her leg. The evidence showed that the grievant had been a patient of the doctor's before, as had her children, and that she had had no problems with him in the past. A nurse escorted her to a triage room and took her vital signs. There was dispute at the hearing as to whether the grievant and Dr. Norsworthy were alone in the room when he examined her; she claimed they were, while Dr. Norsworthy and his nurse claimed the nurse was there; however, neither of them could specifically remember the nurse being in the room. The grievant claimed that the doctor placed his stethoscope on her back and asked her to breath deeply several times. She then stated that he. moved to her front and asked her to move her bra. She did so, and he asked her to move it farther. When she obliged, he allegedly placed his hand under her bra and placed the palm of his hand around the bottom of her left breast as his fingers held the stethoscope to her chest. The grievant subsequently reported this incident to her husband and her best friend, discoveiing from the latter that Dr. Norsworthy had been accused of such behavior in the past. She filed a report with the Kentucky State Police about the event on February 22, 2007. The KSP informed the KBML of the case. On September 26, 2007, the grievant 2 filed her grievance with the KBML. The hearing was held on May 7, 2008. Before the hearing the Heming Officer;had denied Dr. Norsworthy's request that he be given an opportunity to examine and present certain of the grievant's psychological medical records and drug history as evidenced by her KASPER records. The Hearing Officer also denied Dr. Norsworthy's motion to exclude "bad acts" testimony regarding his past disciplinary issues with the KBML. Without detailing these issues in their entirety, the Court would note that Dr. Norsworthy has been accused in the past of fondling or cupping women's breasts during examinations on several different occasions. The doctor is quick to note in his Petition for Judicial Review that these complaints were resolved by a 2002 Agreed Order between Dr. Norsworthy and the KBML which states that "the evidence did not establish medically inappropriate touching." There is no doubt that the Hearing Officer took Dr. Norsworthy's past record into consideration, as he devoted some 27 paragraphs in his Order detailing the complaints and their various resolutions. There can also be no doubt but that the KBML has worked with Dr. Norsworthy to address the complaints, as evidenced by agreed orders reached in 1989, 1990, 1993, and 2000: inter alia, it has placed him on probation, has ordered him to undergo counseling, and has required him to have a chaperone in his office during examinations of female clients. It is worth noting that Dr. Norsworthy has presented the Court wi~h some 459 signatures of suppoti from the public. Moreover, at the TRO hearing, the gallery was practically full of people wearing yellow shirts in support of Dr. Norsworthy. The Court was interested to note that the great majority of the many people who came to the hearing some two and one-halfhours away from their home county were women. 3 CONCLUSIONS OF LAW CR 65.04 reads in pe1iinent part: ( 1) A temporary injunction may be granted during the pendency of an action on motion if it is clearly shown by verified complaint, affidavit, or other evidence that the movant's rights are being or will be violated by an adverse party's and the movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts of the adverse party will tend to render such final judgment ineffectual. Because the injunction is an extraordinary remedy, sufficiency of the evidence below must be evaluated in light of both substantive and equitable principles. Realizing that the elements of CR 65.04 must often be tempered by the equities of any situation, injunctive relief is basically addressed to the sound discretion of the trial court. Maupin v. Stansbury, 575 S.W.2d 695, 697 -98 (Ky.App., 1978). A three-part test exists in determining whether to issue a temporary injunction. Id. at 699. The first prerequisite, mandatory under Rule 65.04, is a showing of irreparable injury. Secondly, the trial court must weigh the equities involved. Finally, the third prong requires the issuing trial court to assure that a substantial question is at issue. See Sturgeon Min. Co .. Inc. v. Whymore Coal Co .. Inc., 892 S.W.2d 591, 592 (Ky. 1995). In order to show hann to his rights, a party must first allege possible abrogation of a concrete personal right. M01Tow v. City of Louisville, Ky., 249 S.W.2d 721 (1952). While the nature of this iight may be, and usually is, disputed, it is clear that some substantial claim to a personal right must be alleged. Maupin, 575 S. W.2d at 698. In addition to showing that personal rights are at stake, CR 65.04 further requires a clear showing that these rights will be immediately impaired. Thus, the remote possibility of some feared wrong in the future is insufficient to support a trial court's award 4 of a tenrporary injunction. Chapman v: Beaver Dam Coal Co., Ky., 327 S.W.2d 397 ( 1959). Rather, the element of "immediacy" contemplates that the paiiies show an urgent necessity for relief. McCloud v. City of Cadiz, Ky.App., 548 S.W.2d 158 (1977}. This means that "(a)n injunction will not be granted on the ground merely of an anticipated danger or an apprehension of it, but there must be a reasonable probability that injury will be done if no injunction is granted." Hamlin v. Durham, 235 Ky. 842, 32 S.W.2d 413, 414 (1930). The Court finds first that Dr. Ebert has satisfactorily shown he has suffered an immediate injury by way of being restricted from treating female patients. The KBML argued that he is still able to treat "half of the population," but that argument ignores that some seventy percent of Dr. Norsworthy's patients are women, leaving him with a practice some 30% of what it would have been. Dr. Norsworthy contends the grievant is but one person making a single allegation of . wrongdoing, and that in the eighteen months which have passed since her visit in Febrnary, 2007, no one else has come forward with similar complaints. The Court is satisfied that removing the doctor's ability to treat the women who comprise the majority of his practice does more than simply limit his ability to earn money. It also limits his ability to sign new patients and may compromise retention of old patients who may be forced to find new doctors in his absence. Next, the Court must weigh the equities involved. The KBML is assuredly correct in arguing the public must be protected from those physicians who are apt to cause it hann, especially in light ,of evidence that complaints as serious as these have been made in the past. However, the Court finds that the equities in this case lie in favor of Dr. Norsworthy. As mentioned, in the eighteen months this issue has lingered since the grievant's initial visit in Febrnary, 2007, no one has come forward 5 to complain that Dr. Norswo1ihy has touched her inappropriately. Dr. Norsworthy has presented several hundred signatures in his support, and a crowd of people, mainly women, appeared in Court far from home to suppo1i the doctor. According to the Centers for Medicare and Medicaid Services publication, Ohio County is an HPSA for Mental Health ·physicians. 1 Dr. Norsworthy cmTently works as the Ohio County jail physician and is Medical Director for three nursing homes in Ohio County, in which he treats some 113 female nursing home patients. The Court must also take into account the KBML's own actions in the past and now: the 2002 agreed order specifically states that medically inappropriate touching was not proved, and Dr. Norsworthy indicated that at least two KBML members suggested this matter be held in abeyance until the Ohio County civil suit is resolved. The Court is very concerned that the allegations against Dr. Norsworthy be taken and dealt with seriously, as the KBML is doing, but it is satisfied that maintaining the status quo as it has existed these past eighteen months is appropriate in this case. Finally, the Court is convinced Dr. Norsworthy has presented.a substantial question rendering a temporary injunction appropriate. He presented two cases dealing with the notion of how and whether KASPER records' confidentiality should take precedence over a litigant's rights to discover exculpatory evidence. 2 In that the matter at bar concerns a single incident with one person who, it has been mentioned quite often in the record, has at some point taken fairly serious prescription drugs, the Court is satisfied that a question as to whether that drug use, along with her psychological 1 See website at http://www.adminastar.com/Providers/Carrier/ HPSA/files/KYHPSACountyListUpdates.pdf (updated 2005). 2 The Court recognizes that these cases have been accepted for Discretionary Review by the Supreme Court and are therefore not binding or precedential for this Court. 6 histo1y, should be considered in assessing the allegations against Dr. Norsworthy is a substantial question of law insofar as ·that tenn relates to the issuance of tempormy injunctions. For these reasons, the Court will issue the requested temporary injunction against the enforcement of the KBML's Order of Indefinite Restriction of Dr. Norsworthy's license. ORDER WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED that the Respondent's Motion for a Stay of the Emergency Order of Suspensio t:NT;::;~;..u '"' Cuun 1 DAVID L. NICHOLSON. CLERK cc: David Lambertus, Esq. 600 West Main Street, Suite 300 Louisville, KY 40202 Karen Quinn, Esq. Assistant General Counsel Kentucky Board of Medical Li censure 310 Whittington Parkway, Suite IB Louisville, KY 40222 7 FILED Of RECORD COMMONWEALTH OF KENTUCKY BOARD OF MEDICAL LICENSURE CASE NO. 1135. JUL 24 2008 ~tR,l\tl~ IN RE: THE LICENSE TO PRACTICE MEDICINE IN THE COMMONWEALTH OF KENTUCKY HELD BY ERIC A. NORSWORTHY, M.D., LICENSE NO. 20834, 1219 NORTH MAIN STREET, BEA VER DAM, KENTUCKY 42320 ORDER OF INDEFINITE RESTRICTION At its July 17, 2008 meeting, the Kentucky Board of Medical Licensure (hereafter "the Board"), acting by and through its Hearing Panel B, took up this case for final action. The members of Panel B reviewed the Complaint; the Hearing Officer's recommended Findings of Fact, Conclusions of Law and Recommended Order; a June 25, 2008 memorandum from the Board's Assistant General Counsel; Exceptions to Recommended Decision; and the Brief in Support of a Finding in Favor of Respondent by Hearing Panel B. The licensee's counsel were present at the meeting. The Panel determined that they had sufficient information to finally resolve the Complaint without hearing further argument by either party. Having considered all the information available and being sufficiently advised, Hearing P~nel B ACCEPTS the hearing officer's recommended Findings of Fact and Conclusions of Law and ADOPTS the Findings of Fact in their entirety and Conclusions of Law 1through11 and INCORPORATES them BY REFERENCE into this Order. (Attachment). Hearing Panel B further takes administrative notice of its billing records and makes a Separate Finding of Fact 138 that the costs of this proceeding were $4,774.50. Hearing Panel B ADOPTS Conclusion of Law 12 to the extent it discusses the Board's past actions against Dr. Norsworthy, his actions in the current case, and that Dr. Norsworthy is not subject to rehabilitation. The Hearing Panel MODIFIES Conclusion of Law 12 to the extent that it indicates that revocation of Dr. Norsworthy's license to practice medicine is the appropriate sanction. The Panel members discussed whether revocation or permanent restriction of the license was the appropriate sanction in this particular case. They noted the Hearing Officer's recommendation that the license be revoked. Certain Panel members noted that, in certain previous cases, the Panels were able to appropriately protect the public by allowing a licensee to resume the active practice of medicine, after having his license revoked for the minimum two-year period, by requiring the licensee to agree to a permanent restriction of their medical practice, under which they were forever prohibited from engaging in the practice of medicine with female patients. These Panel members reasoned that they could avoid revocation of the licensee in this case if they were able to impose a permanent restriction upon this licensee's medical practice whereby he could never see or treat female patients. Accordingly, the Panel voted to withhold revocation in this particular case so long as they could permanently restrict this licensee from seeing or treating female patients for the remainder of his medical career. The Panel expressly concludes that, in light of this licensee's previous history and the current findings, the only sanction which will adequately protect the public is one which conclusively ensures that this licensee may never be permitted to enter into a physician-patient relationship with or to perform any medical procedure - evaluation, diagnosis or treatment - on any female patient during the remainder of his medical practice. If this can be accomplished by a permanent restriction upon his medical license, then revocation may be avoided and he may be permitted to practice under this permanent restriction. Therefore, Hearing Panel B ORDERS: 2 1. The license to..practice medicine in the Commonwealth of Kentucky held by Eric A. Norsworthy, M.D. is RESTRICTED/LIMITED FOR AN INDEFINITE PERIOD OF TIME. 2. During the effective period of this Order of Indefinite Restriction, the licensee's Kentucky medical license SHALL BE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF RESTRICTION/LIMITATION for an indefinite term, or until further order of the Board: a. The licensee's practice of medicine is expressly and permanently RESTRICTED to providing medical treatment and acting as the treating physician to male patients only. b. The Panel will not consider any request by the licensee to resume providing medical treatment and acting as the treating physician to female patients. c. The licensee SHALL pay the costs of this proceeding in the amount of $4,774.50 within six (6) months from entry of this Order of Indefinite Restriction; d. The licensee SHALL NOT violate any provision of KRS 311.595 and/or 311.597. - SO ORDERED on this 24th day of July, 2008. C6r.M u&~ [)c,tJ RANDEL C. GIBSON, D.O. CHAIR, HEARING PANEL B 3 Certificate of Service I certify that the original of the foregoing Order of Indefinite Restriction was delivered to Mr. C. William Schmidt, Executive Director, Kentucky Board of Medical Licensure, 310 Whittington Parkway, Suite lB, Louisville, Kentucky 40222 and copies were mailed via certified mail return-receipt requested to Eric A. Norsworthy, M.D., 1219 North Main Street, Beaver Dam, Kentucky 42320; and David Lambertus, Esq., 600 West Main Street, Suite 300, Louisville, Kentucky 40202 on this 24th day of July, 2008. I i :~ / 0 / ,··' ,.' . ' '~~~ \ KAREN QUINN Assistant General Counsel Kentucky Board of Medical Licensure 310 Whittington Parkway, Suite lB Louisville, Kentucky 40222 502/429-7150 EFFECTIVE DATE AND APPEAL RIGHTS Pursuant to KRS 311.593(1) and 13B.120, the effective date of this Order will be thirty (30) days after this Order of Indefinite Restriction is received by the licensee or the licensee's attorney, whichever shall occur first. The licensee may appeal from this Order, pursuant to KRS 311.593 and 13B.140.150, by filing a Petition for Judicial Review in Jefferson Circuit Court within thirty (30) days after this Order is mailed or' delivered by personal service. Copies of the petition shall be served by the licensee upon the Board and its General Counsel. The Petition shall include the names and addresses of all parties to the proceeding and the agency involved, and a statement of the grounds on which the review is requested, along with a copy of this Order. 4 RECfiVED. COMMONWEALTH OF KENTUCKY KENTUCKY BOARD OF MEDICAL LICENSURE AGENCY CASE N0.1135 ADMINISTRATIVE ACTION NO. 07-KBML-0511 KENTUCKY BOARD OF MEDICAL LICENSURE vs. MAY 23 2008 K.B.M.L COMPLAINANT FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER ERIC A. NORSWORTHY, M.D. LICENSE NO. 20834 RESPONDENT * ·* * * * . On May 7, 2008, the hearing officer conducted the administrative hearing on the Complaint issued by the Kentucky Board of Medical Licensure [hereinafter "the Board"] against the license of the respondent, Eric A. Norsworthy, M.D. At the hearing Hon. Karen Quinn represented the Board, and Hon. David A. Lambertus represented Dr. Norsworthy. After considering the evidence admitted at the hearing and the arguments of · counsel, the hearing officer recommends that the Board find Norsworthy guilty of the charges against him. The hearing officer further recommends that the Board adopts Ms. Quinn's request that Norsworthy's license to practice medicine be terminated as a result of his misconduct. In support of his recommendation, the hearing officer submits the following findings of fact, conclusions of law, and recommended order. FINDINGS OF FACT I. The Charges 1. On December 4, 2007, the Kentucky Board of Medical Licensure issued the Complaint against Eric A. Norsworthy, M.D., charging him with violating KRS 311.595(5) and KRS 311.595(9), as illustrated by KRS 3,11.597(4). 2. Under those statutes, a physician is subject to discipline.if he has sexual contact with a patient and if he has engaged in dishonorable, unethical, or unprofessional conduct by his failure to conform to the principles of medical ethics of the American Medical Association. 3. . The substance of the allegations against Norsworthy are that while performing a physkal examination of a female patient who had sought treatment for a cough and sore throat, he asked her to pull her bra away from her chest, and when she complied with that request, "he placed his hand under her bra and cupped her left breast with most of his hand while still holding the stethoscope. He then went above her left breast, seemingly to listen to her chest, but still resting the heel of his hand on her breast." Complaint, page 4. 4. In order to protect the privacy of the female patient who has made th,e allegations of misconduct against Norsworthy, she will be referred to as the "complainant" in this recommendation. 5. In his defense, Norsworthy asserts that all of the complainant's allegations of misconduct are untrue. He denied that he asked the complainant to pull her bra 2 .. · ' i ... :: < . . away from her chest, denied that he cupped her breast with his hand during the physical examination, a,nd denied that he engaged in' any inappropriate touching or other misconduct toward the complainant. Norsworthy asserted that the complainant was intoxicated during the exam and fabricated the allegation.s in order to ·collect damages in her civil lawsuit that is pending against him. 6. Norsworthy is licensed to practice medicine in Kentucky. 7. His medical specialty is family medicine, and the office for his medical practice is located in Beaver Dam, Kentucky. II. The Complainant's Previous Medical History with Norsworthy 8. Prior to the incident at issue in this action, the complainant had been examined by Norsworthy on only one occasion, September 9, 2002. Exhibit 6. 9. On several other occasions, however, she had taken her children to' be examined by physicians in Norsworthy's office. 10. Norsworthy himself had provided medical care to her children on some of those visits, but he .was not their primary physician. 11. The complainant stated that Norsworthy had always been professional in .his dealing with her, and prior to the incident at issue in this action, she had believed him to be a good doctor. 12. The complainant has had no interaction or association with Norsworthy other than through the office visits. 3 III. The Complainant's Allegations Against Norsworthy 13. The complainant scheduled an appointment with Norsworthy's office for February 20, 2007, at 10:30 a.m, in order to seek treatment for chest congestion, a sore throat, an ear ache, body aches, and a rash. 14. She had been suffering with those sympt9ms for three weeks and had decided to contact a doctor when she feared that she had developed pneumonia. 15. When the complainant made her appointment for February 20, Norsworthy was the only physician available to see her. 16. Several members of Norsworthy's office staff who testified at the hearing described February 20, 2007, as a very busy day due to the large number of patient appqintments. · 17. The complainant could not recall whether she completed the forms for new patients since she had not been examined recently by any of the physicians in the office. 18. On. the morning of February 20, 2007, the complainant noticed only two or three support staff in the office, but there was a total of six to eight nurses who worked that day. 19. The complainant was eventually called from the waiting room to a small examination room where Linda Morse, one of the nurses on the staff, took the complainant's vital signs and recorded her symptoms. Exhibit 23. 20. After Morse obtained that information, the complainant was taken to an examination room to wait for Norsworthy. 4 21. There is no dispute that the complainant was alone in the examination room while she waited for Norsworthy to arrive: 22. The complainant asserted that when Norsworthy entered the examination room, he was alone, and no staff member entered the room at any point during the examination. 23. Norsworthy asserts that Linda Morse must have been in the room during the examination, but neither she nor Norsworthy had any independent recollection of her presence during that particular examination. 24. The complainant asserted that Norsworthy began the examination by asking her a· series of questions about her symptoms. 25. After obtaining that information, he used his stethoscope to listen to her .lungs, beginning with her back, and he asked her to take deep breaths as he listened at several different points .on her back. 26. Norsworthy then moved to her front, and the complainant asserted that he asked to "pull her bra out a little" so that he could examine her chest with the · stethoscope. 27. The complainant pulled out her bra at its center and from the outside of her . _shirt, and in response to Norsworthy's request that she "pull it out.ci little more," she did so. 28. He then moved his hand that was holding the stethoscope underneath the 5 bra, and he placed the cup of his hand around the bottom of her· left breast as he used his fingers to hold the stethoscope to her chest while he asked her to breathe. 29. The complainant believed that Norsworthy held his hand in that position for about a minute. 30. He performed the same examination on tJ:le right side of her chest with his ·hand cupped around the bottom of her right breast. 31. The complainant stated that the examination happened very quickly and that she did not understand what was going on until Norsworthy had finished. 32. She stated that he could have placed the stethoscope at each location on her chest without disturbing her clothing and without placing his hand on her breasts. 33. No other physician had ever cupped his hand around her breast while using a stethoscope to examine her chest. 34. She did not say anything to Norsworthy in response to his.actions, and she did not ask why he had examined her in that manner. 35. The complainant was confused, shocked, and embarrassed by his actions. 36. After taking his hand from beneath her bra, Norsworthy told the complainant that she had some congestion, bronchitis, and redness in her throat and that he would prescribe her some antibiotics. Exhibit 6. 37. The complainant told Norsworthy that she couldn't afford more than a nominal amount for medication, and he offered to give her a voucher to receive a discount for antibiotics at a local pharmacy . . 6 38. He left the examination room and returned with the voucher and asked her to make a follow-up appointment if her symptoms did not improve. 39. The complainant estimated that she was in the examination room for a total of fifteen to twenty minutes. 40. When the complainant left the medical office, there were no nurses or other. staff in the hallway, and only one gentleman was sitting in the waiting room. 41. The complainant asserted that the shade was drawn at the receptionist's window, and therefore, she did not stop there before leaving the office~ 42. She stated that she did not have a discussion with anyone other than Norsworthy concerning the voucher for obtaining the prescription for an antibiotic. · .43. The complainant drove to the pharmacy to get the prescription filled and returned.to her home. 44. ~ing the time period between leaving the, office and arriving at her house, the complainant.described herself as being "dumbfounded," and she thought to herself, "I think he just felt me up." She was confused and didn't understand "why he had done that" as part of the physical e~arnination for her symptoms. 45. Shortly after arr1ving home, she confided to her husband what had transpired during the office visit. 46; The more the complainant thought about the incident, the more upset she became. 7 ( !··· 47. Even though she was upset, the complainant did not believe she was more upset than any other woman would have been if Norsworthy had touched her in the same manner. 48. On the same day as the office visit, the complainant also told her best friend about how Norsworthy had touched her. 49. Her friend responded by stating that Norsworthy had done the same type of thing to other female patients, but the complainant had never heard of those accusations. 50. The next day, the complainant went to her local sheriff's office to file a complaint, but they told her that she had to file it with the Beaver Dam police department where the incident occurred. That police department told her the incident . . would have to be handled by the Kentucky State Police, and she was put in touch with a detective from that police force. 51. On February 22, 2007, which was two days after the incident, she met with the detective and prepared a written statement setting forth the accusations against Norsworthy which were recounted during her testimony at the administrative hearing. Exhibit 2. 52. The detective told her that the next step for her would be to file a grievance with the Board, and he gave her the address for the Board's website where she could obtain additionalinformation about the grievance process. 8 53. When the complainant visited the Board's website, she discovered that other actions had been taken by the Board against Norsworthy and that the Board had · ordered him to have chaperons in the room during his examination of female patients. 54. r Eventually, she filed with the Board a grievance dated September 26, 2007, and it contained substantially the same allegations as, were presented in her 'written statement to the state police. Exhibit 3. 55. Since February 20, 2007, the complainant has not returned to Norsworthy's office, and her children have not been seen by any other nurse or physician inthat practice. IV. Norsworthy's Defense to the Charges 56. Norsworthy denied that he engaged in any misconduct during his .. examination of the complainant, and he asserts that the interaction with and examination of the patient were routine and unremarkable. Therefore, he denies all of the complainant's allegations of misconduct. 57. His position was largely supported by the members of his office staff who testified at the hearing. 58. In spite of the fact that February 20, 2007, was a very busy day, Cynthia Lykins, a nurse and office manager for Norsworthy's medical practice and the author of his own chaperon policy, stated that she had clear recollections of the complainant's office visit. Lykins recalled that after the complainant arrived at the office~ she , approached the receptionist's window to ask how much longer she would have to wait 9 to see a doctor, an event that occurs frequently enough not to be particularly unusual. There was no suggestion that the complainant was 16ud or so troublesome as to make the encounter memorable. 59. Lykins also recalled seeing the complainant alone in the examination room during her office visit on February 20, 2007. 60. Lykins stated that after the complainant had been examined by Norsworthy, she stood at the window for the receptionist, who Lykins asserted was at her work station at the time, as Lykins retrieve.cl and presented to the complainant a voucher for a discount on the prescription medication; 61. Lykins did not state why she had such vivid recollections of the complainant's actions on that particular day when all of Lykins' interactions with the complainant involved routine patient/staff encounters orotherwise fairly common occurrences. 62. In addition, Lykins did not state when she first became aware of the accusations by the complainant against Norsworthy or of the complainant's assertion .that there was no one present at the receptionist's desk when she left the office. 63. The first recotd-that contains that particular assertion is the grievance filed with the Board on September 26, 2007, seven months after the date of her appointment. Exhibit 4. 64. Yet, Lykins asserted that she recalled not only delivering the prescription 10 " !,i •. ·~. •••• voucher to the complainant on the date of her appointment, but that she did so at the receptionist's window and in the presence of the receptionist. 65. Furthermore, it is undisputed that when the complainant left the office, several of the staff were at lunch and only one person was sitting in the waiting room. Since it is also undisputed that February 20, 2007, was a busy day, those facts support the conclusion that the staff was in the process taking a lunch break, that there were few . if any patients left to be examined prior to the break, that the office was not fully staffed due to the lunch break, and that no one was manning the receptionist's desk when the complainant left the office. 66. Although the issue concerning whether the complainant stopped at the receptionist's desk prior to leaving the office is unrelated to the specific allegations of misconduct against Norsworthy, he raised the issue in order to suggest that if she was. mistaken on that issue, her assertion that he touched her in an inappropriate manner is· also unbelievable. 67. The hearing officer finds, however, that the complainant was a credible witness, and her statements as to the events that transpired during her office visit were credible. 68. During her testimony, the complainant related the events as she recalled them, and she presented detailed and consistent testimony regarding her office visit and Norsworthy's conduct during the entire examination. She was not reluctant to 11 (. acknowledge the facts that she did not know, and she did not make any attempt to highlight or exaggerate. the nature of Norsworthy's rcisconduct or her reaction to it. 69. Furthermore, her assertions that Norsworthy completed the examination before she fully realized what had happened, that she was shocked and confused by hil? conduct, that she became more angry the more she thought about the events~ and that : she had always trusted her physicians to act in an appropriate and professional manner, were all believable and reasonable reactions to Norsworthy's misconduct that occurred as part of a legitimate medical examination. 70. In addition, if the complainant was shocked, angry, and confused about what had just transpired during the examination, she could have been distracted enough by his misconduct not tc: recall accurately what may have transpired immediately afterward, especially since the latter events were not in themselves significant or memorable in the context of the misconduct that had just occurred in the examination room. 71. Norsworthy suggests that he could not have engaged in the misconduct as alleged by the complainant since a sta# member could have entered the examination room at any time. 72. The complainant, however, was not in a state of undres·s during the examination, and Norsworthy's hand was concealed beneath the complainant's shirt. Thus, it would not have been readily apparent to anyone entering the room that 12 !{ \I• "· • Norsworthy's hand was also inside the complainant's bra or that he was engaged in anything but a routine medical examination. 73. Norsworthy also asserts that the very language used by the complainant to describe his misconduct, that he "cupped her breast," suggests that prior to making the accusations, she read information that was available ~t the Board's website regarding previous Board action against him and fabricated the allegations in order to collect money damages. 74. There was no evidence to support the conclusion that the use of the word "cup" to describe the holding of a breast in one's hand is an unusual or uniqt~e expression, and there was no evidence that the complainant knew of other allegations against Norsworthy or that she had visited the Board's website prior to informing the police of her alleg".ltions against him. 75. Although the complainant has a pending civil lawsit against Norsworthy involving the same conduct at issue in this action, the preponderance of the evidence does not support the conclusion that she fabricated her allegations against him, much less that she did so s~ply as part of a scheme to collect damages. There also has been no suggestion that she discussed her allegations with an aJtomey prior to her contacting the police departments and presenting them with the written statement of the allegations that are at issue in this action. Exhibit 2. Her assertion that she contacted the police, submitted her grievance to the Board, and filed a lawsuit based upon the fact that Norsworthy's conduct was wrong and offensive is believable. 13 .t. 76. ·. In his dictated notes for the February 20, 2007, office visit, Norsworthy, after noting that the complainant was taking Wellbutrin Et, Cymbalta 60 mg, Xanax 1 mg four times a day, Seroquel, and Visteril, stated that she "appears to be under the· influence of medication today" and that he "refused her request to refill her Xanax, since she already gets that from River Valley." 77. Norsworthy testified at the hearing that the complainant was so intoxicated during the examination that he was surprised that she could make it into the office. 78. The complainant denied that she was intoxicated or that she requested a refill of the Xanax. 79. Presumably other staff members who had interacted with the complainru:tt would have noted her allegedly extreme intoxication, and it would have been understandable that they would recall someone who appeared to be significantly impaired. Neither Morse, who recorded the complainant's vital signs and symptoms, nor any other staff member, other than Norsworthy, testified that the complainant was intoxicated on the date of the examination. 80. Furthermore, Norsworthy did not state at the hearing or note in the medical chart that he counseled her -about her state of intoxication or that he attempted to delay her departure from the office in order· to prevent her from driving while impaired, especially when he had just presented her with a prescription that she would need to . have filled at a pharmacy. 14 .81. Therefore, Norsworthy's allegations as to complainant's intoxication and her alleged request to refill a Xanax prescription are not credible. Either he dictated the note for the medical chart after he was first informed of her allegations, or most likely, he fabricated his allegations in order to be able to challenge her credibility if she ever accused him of the misconduct that occurred during the examination. V. Previous Allegations of Misconduct Against Norsworthy 82. From his own history as a practicing physician Norsworthy was well aware of the fact that a patient could accuse him of sexual misconduct.· 83. Thus, a physician who has a history of being accused of such conduct can be expected to take steps to protect himself against such charges. 84. Norsworthy has an extensive history of patient complaints and disciplinary actions before the board dating from 1989 that involved accusations of inappropriate sexual contact with female patients. 85. As set forth in the Stipulations of Fact of the Agreed Order entered on June 10, 2002, Norsworthy has been subject to a series of agreed orders entered between him .and the Board as a result of complaints of inappropriate sexual contact with female patients in 1989, 1990, 1993,-and 2000. Exhibit lB. 86. As a result of the Board's investigations conducted in 1989 and 1990, a 11 sixteen year old female patient and her mother asserted that Norsworthy simply lifted [the patient's] breast out of her bra and fondled her breast in a way no other doctor had 15 done," and two other female patients asserted that Norsworthy "had sexual intercourse with them after giving them some medication." Exhibit lB, page 1-2. 87. As a result of those charges, Norsworthy entered into an agreed order on June 30, 1990, which suspended his medical license for six months followed by a period of probation of 4 ~years. Exhibit lC, Agreed Order dated June 30, 1990. 88. In October 1990 the Board reinstated Norsworthy's medical license and vacated the remaining two months of the suspension of his license. Exhibit lC, Supplemental Order dated October 31, 1990. 89. In February 1993, the Board received a grievance from a twenty-one year old female patient alleging that Norsworthy, in addition to other sexual misconduct, f/whlle listening to her heartbeat, cupped and massaged her breasts." Exhibit lB, Agreed Order, page 2. 90. As a result of those allegations Norsworthy agreed to extend his probationary period for an additional five years. Exhibit lC, Agreed Order dated August 15, 1993. 91. Beginning in 1993 and as a result of a recommendation from the Impaired Physicians Program, Norsworthy was required to have female staff members present during his examination of female patients .. Exhibit lB, Agreed Order, pages 2-3. 92. By order dated October 9, 1997, the Board granted Norsworthy's request that his probation be terminated. Exhibit lC, Order Terminating Probation. 16 93. On February 1, 2000, however, the Board received a grievance from a local physician that Norsworthy had conducted "inappropriate" breast examinations and ·"unnecessary" pelvic examinations on ten female patients. Exhibit lB, Agreed Order. 94. Several of those patients alleged that Norsworthy had fondled their breasts. 95. One patient alleged that around June 1998, Norsworthy "forcibly pulled dov\rn her blouse and bra, exposing her breasts, without a nurse ,pre~ent/' and that he "had also run a stethoscope in circles around her breasts." Exhibit lB, Agreed Order, pages 3-4. 96. A sister of another patient alleged that in 1995, Norsworthy "fondled [the patient's] breast in the guise of an examination." Exhibit lB, Agreed Order, page 4. 97. A third patient accused Norsworthy of sexual misconduct around January 23, 1997, as he examined her for a sore. throat, cough, chills, and an elevated temperature. According to the patient, Norsworthy "lifted her top, removed her left breast from her bra and cupped her breast in her hand, while saying he was still checking her heart and breathing." Exhibit lB, Agreed Order, page 4. 98. Those allegations are strikingly similar to the allegations made by the complainant in this action, but as found previously, the preponderance of the evidence does no.t support Norsworthy's assertion that the complainant was aware of the earlier allegations before she made her own accusations against him. 99. A fourth patient accused Norsworthy of conducting a breast examination 17 when she sought treatment around July 10, 1997, for complaints of a non-productive cough. Exhibit lB, Agreed Order, page 5. 100. A fifth patient asserted that around June 4, 1998, Norsworthy conducted his examination in amanner that was very similar to the allegations of the complainant. Allegedly, "after placing the stethoscope to Patient K:s back, the licensee moved to her ·. front and placed his hand inside her bra, cupping her left breast. The licensee then moved his hand across her chest and cupped her right breast.... Patient K testified. that, while holding the stethoscope, the licensee placed his hand inside of her left bra cup and cupped her left breast while holding the stethoscope." Exhibit lB, Agreed Order, page5. 101. A sixth patient alleged that while being examined for lower back pain that · did not include problems while urinating, Norsworthy "pulled up her shirt and bra, exposing both of her breasts and then felt each breast. Exhibit lB, Agreed Order, page 5. 102. A seventh patient alleged that during her examination at a hospital for paroxysmal tachycardia, Norsworthy "pulled up her gown, undid her bra, and used his hand to displace her breast while listening with his stethoscope. The assisting nurse testified that she considered the licensee's examination of this patient inappropriate because he held her left breast while placing the stethoscope above the patient's breast. Exhibit lB, Agreed Order, page 6 (emphasis in original). 1 103. Finally, the Board alleged that Norsworthy ' had inappropriate sexual 18 contact with [an eighth patient], a 17-year old female, during his examination of her. breast(s)." Exhibit lB, Agreed Order, page 6. 104. The allegations of misconduct by those eight patients are consistent with the·. complainant's own allegation that Norsworthy improperly touched her breasts, and the similarity in the allegations by several different patieµts show that Norsworthy engaged in a common plan or scheme to touch the patient's breasts inappropriately while using a stethoscope to listen to the patient's chest. 105. As a result of those latest allegations fo misconduct, the Board and Norsworthy entered into another agreed order whereby several restrictions were placed upon his ability to examine female patients, including: "the licensee SHALL NOT conduct any examination of a female patient, involving areas of the patient's body between her neck and her knees, unless the examination is medically necessary and medically appropriate, an approved chaperon is present throughoutthe examination, and the patient is properly draped." Exhibits lB, Agreed Order, page 8 (emphasis in original). 106. Norsworthy was required to obtain prior Board approval of all chaperons, who were required to: "l) remain present and within direct eyesight and within clear hearing distance of the licensee and the patient throughout the entire period the licensee is with a female patient; 2) accurately record the chaperon's presence, or absence, for the entire duration of such patient interaction in the patient's chart, or the patient record maintained by that clinical setting; 3) immediately notify the designated 19 contact person at the Board's offices to report any violation of the chaperon requirement by the licensee." Exhibit lB, Agreed Order, page 9. 107. Norsworthy was also requited under the terms of the Agreed Order to use the chaperons on a rotating basis "so that assigned approved chaperons change frequently and so that no chaperon acts as the exclusive chaperon for longer than a thirty-day period. Exhibit lB, Agreed Order, page 9. 108. On September 22, 2005, the Board agreed to end the restrictions placed upon Norsworthy for the examination of his female patients. Exhibit lB, Order ·Terminating Agreed Order. · VI. Norsworthy's Own Chaperon Policy 109. Even though at the time of complainant's appointment on February 20, . 2007, Norsworthy was no longer subject to a Board order requiring him to use chaperons, he had instituted his own policy requiring the presence of a chaperon in the examination room during his treatment of female patients. 110. The chaperon policy that Norsworthy utilized at the time of the complainant's office visit was not as rigorous as that required by the terms of the Board's earlier orders. 111. Under Norsworthy's policy, the chaperon was not required to be in the examination room for the entire time that Norsworthy was present with the patient, and the chaperon was not required to write on the patient's medical chart that the chaperon had been present during the entfre time Norsworthy-was with the patient. 20 . ·. . :,..,\ -: . 112. In fact, Norsworthy's policy was not put into writing until a week after the complainant made allegations against him, and the policy was drafted by the nurse who also served as manager for his staff. 113. Although Norsworthy asserted that his staff rigorously complied with his chaperon policy, the fact that the staff was no longer following the policy implemented ' at the direction of the Board and that Norsworthy's policy was not put into a written format until after the incident at issue in this action suggests that the policy itself was an informal understanding among the staff on how patient examinations should be conducted rather than a rigorous policy that the staff were required to follow. 114. In order to comply with the Board's earlier directive requiring chaperons, Norsworthy had installed a series of flags at the top of the door to each examination room to alert the staff of the status of the patient in the room. Exhibit 18. 115. The staff had elected to continue to use the flag system, but there was no specific requirement under Norsworthy's policy that the staff use the flags. 116. If the nurse turned the black flag perpendicular to the hallway wall, a female patient was in the examination roorri. 117. If the female patient would require enhanced privacy during an examination, the black and the white flags were turned perpendicular to the wall. Exhibit 11. 118. If the green flag was also turned perpendicular, that patient was the next to be examined. Exhibit 8. 21 119. Most of the female office staff were available to act as chaperons, and the staff was charged with the responsibility for implementing Norsworthy's system. 120. Although a female staff member was required under Norsworthy's policy to be present with him during "specific patient encounters," a term that was not defined under his policy, there was no prohibition against Norsworthy entering the room if a staff member was not present. 121. In addition, no one staff member was assigned to accompany Norsworthy into particular examination rooms or at specific times during the workday. 122. Instead, the system simply required that the staff collectively monitor Norsworthy as he proceeded from one patient examination to the next, and any available staff member was expected to go to an examination room when he entered to treat a female patient. 123. Thus, Norsworthy's chaperon policy did not have a means to ensure that a staff member would be immediately available to accompany Norsworthy as he entered . an examination room that contained a female patient. 124. Under Norsworthy's policy, the nurse who records the vital signs and symptoms was not required to be the chaperon for· a female patient when Norsworthy performs his examination. VII. Norsworthy's Chaperon Policy was not Effective 125. Morse testified that she must have acted as the chaperon for Norsworthy's examination of the complainant based upon the notations in the patient's records. 22 126. At the top of the section on the medical chart for the complainant's visit on February 20, 2007, Nurse Linda Morse wrote "NC-LM," which stood for "Nurse Chaperon-Linda Morse" and which was supposed to indicate that she was the nurse chaperon during Norsworthy's examination. Exhibit 23. 127. Morse, however, had no independent re~ollection of that day or'whether she acted as the chaperon for the complainant. 128. Furthermore, Morse acknowledged that she wrote her initials on the chart at the time she recorded the patient's vital signs and symptoms, which was prior to Norsworthy's examination of the patient. 129. In light of the fact that the staff member who took the vital signs was not required also to act as chaperon, Morse's initials on the patientchart signified nothing more than the fact that she recorded the vital signs and symptoms. 130. Morse stated that the main reason she believed that she had served as chaperon during Norsworthy's examination of the complainant was the fact that his dictated notes in the patient's medical chart stated that Morse was the chaperon. Exhibit 23. 131. Norsworthy, however, admitted that his dictated notes were not recorded contemporaneously with the examination but as much as forty-eight hours afterwards, and he did not require a chaperon to sign the medical chart to verify Norsworthy' s statement that a particular chaperon had actually served in that role for the patient, a 23 :,: ~ ' verification that was required under earlier restrictions imposed by the Board. Exhibit lB, Agreed Order, page 9. 132. Norsworthy also testified that he had no specific recollection of the presence·. .of a chaperon during the examination. 133. Thus; the only "verification" that Morse (lCted as chaperon for the complainant's examination on February 20, 2007, is Norsworthy's own dictated note stating that she did. Exhibit 23. 134. The members of Norsworthy's staff who testified at the hearing were · uniform in their assertion that they took the chaperon policy seriously, used it on every occasion, and had never seen Norsworthy attempt to ignore or circumvent the policy. 135. Assuming that the staff were truthful in their statements, Norsworthy engaged in the misconduct in this action not as a result of a plan or scheme to circumvent his own chaperon policy, but simply as the result of circumstances in which he found himself alone with a female patient who had complaints that necessitated the examination of her chest with the stethoscope. 136. Instead of calling for a chaperon or waiting until one was available, Norsworthy proceeded with the examination and engaged in the same misconduct of cupping his hand under the patient's breast while listening to her chest that had resulted in earlier Board actions against him. 137. Thus, in spite of previous sanctions and limitations on his medical practice and in spite of Norsworthy's own chaperon policy, he has shown by his conduct that he 24 :.: does not have the capacity to control his desire to engage in sexual misconduct toward his female patients. CONCLUSIONS OF LAW 1. Th~ ·Board has jurisdiction over this action pursuant to KRS 311.591 and KRS 311.595. 2. The administrative hearing in this action was conducted pursuant to the provisions of KRS Chapter 13B and KRS 311.591. 3. Under KRS 13B.090(7), the Board had the burden to prove by a preponderance of the evidence that the allegations contained in the Complaint are true. 4. The Board has met its burden in this case. 5. Pursuant to KRS 311.595(5), a physician is subject to discipline if he has "been found by the board to have had sexual contact as defined in KRS 510.010(7) with . a. patient while the patient was under the care of the physician." 6. "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party." KRS 510.010(7). 7. Under the American Medical Association's Ethical Opinion 8.14 (March 1992), Sexual Misconduct in the Practice of Medicine, "sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct." 8. Norsworthy engp.ged in sexual contact with a patient in violation of KRS 25 311.595(5) by requesting the complainant to lift her bra and by placing his hand on her breast when such conduct was not necessary to listen to her chest with a stethoscope. 9. Pursuant to KRS 311.595(9), a physician is subject to discipline if he has "engaged in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public or any member .thereof." 10. Under KRS 311.597(4), the term "dishonorable, unethical, or unprofessional conduct" includes "conduct which is calculated or has the effect of bringing the medical profession into disrepute, including but not limited to ... any departure from, or failure to conform to the principles of medical ethics of the American Medical Association .... " 11. By that same conduct cited above, Norsworthy violated the American . . Medical Association's Ethical Opinion 8.14 and has engaged in dishonorable, unethical, · or unprofessional conduct of a character likely to deceive, defraud, or harm the public · or any member thereof in violation of KRS 311.595(9) and KRS 311.597(4); 12. Norsworthy has engaged in repeated and similar acts of sexual misconduct against female patients dating from 1989, and as a result, the Board has suspended his license, has imposed heightened standards of conduct, and has required the presence of chaperons with his female patients in an effort to ensure that the misconduct is not repeated. Yet, he engaged in the latest instance of misconduct when his staff's busy work schedule presented him with the opportunity to be alone in the examination room with a female patient in spite of the efforts of his medical staff to-implement a policy to 26 r. discourage such misconduct. Thus, the preponderance of the evidence supports the conclusion that Norsworthy is not subject to rehabilitation, and the appropriate sanction for his misconduct in this action is revocation of his license to practice medicine. RECOMMENDED ORDER Based upon the foregoing findings of fact and conclusions of law, the hearing officer recommends that the Board of Medical Licensure revoke the license of Eric A; Norsworthy, M.D., fo practice medicine in Kentucky. NOTICE OF EXCEPTION AND APPEAL RIGHTS Pursuant to KRS 13B.110(4) a party has the right to file exceptions to this recommended decision: A copy of the hearing officer's recommended order shall also be sent to each party in the hearing and each party shall have fifteen (15) days from the date the recommended order is mailed within which to file e~ceptions to the recomrnendatioris with the agency head. A party also has a right to appeal the Final Order of the agency pursuant to KRS 13B.140(1) which states: All final orders of an agency shall.be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days after the final order of the agency is mailed or delivered by personal service. If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides or operates a place of business. Copies of the petition shall be served by 27 the petitioner upon the agency and all parties of record. The petition shall include the names and addresses of all parties to the proceeding and the agency involved, and a statement of the grolinds on which the review is requested. The petition shall be accompanied by a copy of the final order. Pursuant to KR$ 23A.010(4), "Such review [by the circuit court] shall not constitute an appeal but an original action." Some coti.rts have interpreted this language to mean that summons must be served uzling an appeal in circuit court. SO RECOMMENDED this dd day of May, 2008. THOMAS J. HEL~i·~· ~ HEARING OFFICER DIV. OF ADivfINISTRATIVE HEARINGS OFFICE OF THE ATTORNEY GENERAL · 1024 CAPITAL CENTER DR., STE. 200 FRANKFORT, KY 40601-8204 (502) 696-5442 (502) 573-1009 -FAX 28 (. CERTIFICATE OF SERVICE "'l "1 ~ereby certify that the.original of ~his RECOMME~.ATION was mailed this ~day of May, 2008, by first-class mail, postage prepaid, to: JILLLUN KY BOARD OF MEDICAL LICENSURE HURSTBOURNE OFFICE PARK STE lB 310 WHITTINGTON PKWY LOUISVILLE KY 40222 for filing; and a true copy was sent by first-class mail, postage prepaid, to: . DAVID A LAMBERTUS ATTORNEY AT LAW 600 W MAIN ST STE 300 LOUISVILLE KY 40202 . KAREN QUINN .ASSISTANT GENERAL COUNSEL KY BOARD OF MEDICAL LICENSURE HURSTBOURNE OFFICE PARK STE lB 310 WHITTINGTON PKWY LOUISVILLE KY 40222 ~ DOCKET COORDiNATOR . 070511FC 29 · . FILED OF· RECORD COMMONWEALTH OF KENTUCKY BOARD OF MEDICAL LICENSURE CASE NO. 765 ADMINISTRATIVE ACTION NO. 01-KBML-0549 SEP 22 2005 K.B.M.Lo IN.RE: THE LICENSE TO PRACTICE MEDICINE IN THE COMMONWEALTH OF KENTUCKY HELD BY ERIC A. NORSWORTHY, M.D., LICENSE NO. 20834, 1219 NORTH MAIN STREET, BEAVER DAM, KENTUCKY 42320 ORDER TERMINATING AGREED ORDER At its August 18, 2005 meeting, the Kentucky Board of Licensure ("the Board"), acting by and through its Hearing Panel A, considered a request by the licensee to terrriinate the Agreed Order entered into by the parties on June 10, 2002. In addition to the Agreed Order and the request, the Panel members reviewed a July 25, 2005 memorandum by the Board's General Counsel; letters from Bums M. Brady, M.D., Medical Director, Kentucky Physicians-Health Foundation (KPHF) dated April 14, 2004 and July 28, 2005; the licensee's KPHF contract dated September 11, 2002; a March 25, 2004 letter from Arthur L. Burrows, M.D.; and, a March 14, 2005 Compliance Report by George H. Stewart, Medical Investigator. The Panel also heard from Dr. Brady and the licensee. Having considered all information available and being sufficiently advised, Hearing Panel A GRANTS the request and_QRDERS that the Agreed Order filed June 10, 2002 BE AND IT IS HEREBYTERMINATED. SO ORDERED on this 22ndday of Sf:lpt. :, 2005. Do-Ml~ DONALD~ SWIKERT, M.D. CHAIR, HEARING PANEL A Certificate of Service I certify that the original of this Order was delivered to C. William Schmidt, Executive Director, Kentucky Board of Medical Licensure, 310 Whittington Parkway, Suite lB, Louisville, Kentucky 40222 and a copy was mailed, postage prepaid, to Eric A. Norsworthy, M.D., 1219 North Main Street, Beaver Dam, Kentucky 42320 on this 22nd day of .Sept., 2005. C. LLOYD VEST II General Counsel Kentucky Board of Medical Licensure 310 Whittington Parkway, Suite lB Louisville, Kentucky 40222 (502) 429-7150 2 CONJMON\.VEALTH OF KENTUCKY BOARD OF MEDICAL LICEl\SURE CASE NO. 765 ADMINISTRATIVE ACTION NO. Ol-KBML-0549 IN RE: THE LICENSE TO PRACT IC E MEDlClt'IE IN THE COMMONWEALTH OF KENTUCKY HELD BY ERIC A. NORSWORTHY. M.D .. LICE."ISE NO. 20834, 1219 NORTH MAIN STREET, BEA VER D AM, KEl\'TUCKY 42320 ORDER DENYING REQUEST TO TERMINATE AGREED ORDER Ai iis Augus1 19. 2004 meeung, the Kentucky Board of Medical Licensure (hercaftcr ·'the Board"), acting by ond th rough its Heating Panel A. considered the licensee's request to termi nate the Agreed Order filed m this case on June 10, 2002. fn addition to that request, the Panel reviewed a July 16, 2004 memorandum by the Board's General Counsel: the Agreed Order; lcuers from Bums M. Brady, M.D.. Medical Director, Kentuck y Physicians Health Foundation ("the foundation") daced April 14 and July 15, 2004, which included a copy of the licensee's Foundauon contract and a report by Arthur L. Burrows, Jr.: and, Cc1mpliance repo11s dated June 30, 2002, March 6, 2003 and December 8. 2003. The licensee was present for the meeting, but was not asked to address Lhe Panel. Having considered all of the information ava.ilable to it and bei ng sufficiently advised, Heating Panel A ORDERS that the licensee's request is DENIED. Heanng Panel A FURTHER ORDERS that it will not consider a similar request prior to its August 2005 meeting; if the licensee makes a similar request at that or a subsequent meeti ng. the Panel will exercise ics discretion based upon all information availnblc co iLat that time. SO ORDERED on this 7th day of September '2004. DONALD SWIKERT, M.D. CHAIR, HEARING PANEL A Certificate of Service I cenify that the original of tni s Order was delivered to C. William Schmidt, Executive Director. Kentucky Board of Medical Ltccnsure, 310 Wh11tington Parkway. Suite lB, Louisville, Kenwcky 40222, and a copy was mailed, postage prepaid, to Eric Norsworthy, M .D., 1219 N. Main S1rect, Beaver Dam, Kentucky 42320 on th is ....I.th. day of September , 2004. C. Lloyd Vest ll General Counsel Kentucky Board of Medical Licensure 3 10 Whitti ngmn Parkway, Suite LB Lou isville, Kentucky 40222 (502) 429-8().16 2 FIELD OF RECORD COMMONWEALTH OF KENTUCKY BOARD OF MEDICAL LlCENSURE CASENO. 765 ADlv!Il\TISTRATJVE ACTION NO. 0 l-KBML-0549 JUN 10 2002 K.B.M.L. IN RE: THE LICENSE TO PRACTICE MEDICINE IN THE COMMONWEALTH OF KENTUCKY FIELD BY ERIC A NORSWORTHY, M.D., LICENSE NO. 20834, 1219 NORTH MAIN STREET, BEAVERDAM, KENTuCKY 42320 AGREED ORDER Come now the Kentucky Board of Medical Licensure (hereafter "the Board"), acting by and through its Hearing Panel A, and Eric A. Norsworthy, M.D., and, based upon their mutual desire to fully and finally resolve th.is pending Complaint without further cvidentiaryproceedings, hereby ENTER INTO the following AGREED ORDER: STIPULATIONS OF FACT The parties stipulate the following facts, which serve as the factual bases for th.is Agreed Order: I. At all relevant times, Eric A. Norsworthy, M.D., was licensed by the Board to practice medicine in the Commonwealth ofKentuck.-y. 2. In 1989 and 1990, the Board conducted an investigation, following a grievance that the licensee had acted inappropriately during his physical examination of a 16-year old female patient. The patient and her mother alleged that the licensee: a) bad her pull her underwear down without proper draping or the presence of a nurse; b) made an inappropriate comment about her \Ulderwear; and, c) simply lifted her breast out of her bra and fondled her breast in a way no other doctor had done. The Board's investigation also disclosed allegations by two other female patients that the licensee had sexual intercourse with them after giving them some medication. Tue Board and the licensee resolved that investigation infonnally by entering imo an Agreed Order on June 30, 1990. Under the tenns of the Agreed Order, ihe licensee's medical license was suspended for 6 months, followed by a probationary period of 4 Y. years. Under the terms of probation, the licensee was required to: a) continue with psychotherapy with a therapist approved by the Board, with bimonthly reports; b) pay SSOO in costs; and, c) not violate the Kentucky ;-.fedical Practice Aci. 3. By Supplemental Order dated October 31, 1990, the Board granted a request by Burns M. Brady, M.D., Medical Director, Kentucky Physicians Health Foundation - Impaired Physicians Program (IPP), that the 6-month suspension be terminated two months early. Under the Supplemental Order, the licensee was required to comply with the original tenns of probation and to enter into a contractual relationship with IPP, witb quarterly compliance reports to the Board. 4. In February 1993, the Board received a grievance from a 21 -year old female patient that, after she presented with a bladder infection, the licensee had: a) pania11y undressed her; b) embraced her; c) questioned her about her sex life; d) discussed sexually transmitted diseases and suggested a pelvic exam; and, e) while listening to her heartbeat, cupped and massaged her breasts. Following this grievance, the licensee entered Our Lady of Peace for evaluation and treatment. His diagnosis was uadjustment disorder with depressed mood and alcoholism." Dr. Brady reponed that no psychosis was noted and it was felt that the sexual problem was not the primary diagnosis. IPP made the following recommendations: a) continue physicians therapy group; b) begin individual 2 therapy with John Walsh; c) marital therapy at Our Lady of Peace mice a month; d) outpatient care at Our Lady of Peace; e) requi.rement that female staff member be present for all exams on female patients; f) proctorship by two local physicians; and, g) appropriate CME. On August 17, 1993, the parties entered into another Agreed Order, extending the terms of the original Agreed Order for another five (5) years, through 2000. 5. On January 19, 1995, the parties entered into a Second Supplemental Agreed Order of Probation, io address a report that the Jjcensee had engaged in inappropriate prescribing. 'This Order continued the previous terms of probation and added the following conilitions of probations: e) maintain a controlled substances log; f) refrain from calling in any controlled substances prescriptions; and, g) successfully complete the University of Kentucky mini-residency on " The Use and Prescribing of Controlled Substances." 6. On February 1, 2000, the Board received a grievance from another local physician, alleging that the licensee had conducted "inappropriate" breast examinations and "unnecessary" pelvic examinations on patients at Perdue Wellness Center, during the period 1996 through l998. Following the Board's investigation, its Inquiry Panel B issued a Complaint making the following allegations: a Around June 1998, the licensee fondled Patient E's breast and stood with his penis against her leg, during a "driver's physical" exam. Patient E testified that the licensee forcibly pulled down her blouse and b1a, ex1>0sing her breasts, without a nurse present. Patient E testified that the 3 licensee bad also run a stethoscope in circles around her breasts. Patient E also testified that, during that time, the licensee stood so close to her that his crotch was pressing against her knee; b. According to Patient F's sister, Patient F sought treatment from the licensee for lower back pain around l 995; according to the sister, Patient F had stated that the licensee fondled her breast in the guise of an examination. Patient F has testified that the licensee did not touch her breasis inappropriately as her sister had claimed. Patient F testified that, during the examination, the licensee had stood close enough to her that his crotch was pressed against part of her body. c. _.<\round October 10, 1996, Patient G, a 22-year old female, sought a prescription from the licensee at Perdue Wellness Clioic to treat her urinary tract infection (UTI). Even though the nursing staff concluded that the patient was suffering .from UTI and plainly stated she did not want a pelvic examin.ation, the licensee conducted a pelvic examination upon her. cL Around January 23, 1997, the licensee inappropriately touched Patient Fs breasts after she presented for treatment of a sore throat, cough, chills and e.levated temperature. According to Patient H, the licensee lifted her lop, removed her left breast from her bra and cupped her breast in bis hand, while saying he was still checking her heart and breathing. e. Around July 10, 1997, Patient 1, a 15-year old child, presented for treatment of dysuria, complaining of a burning sensation during urination. Without any history of abdominal pain, vaginal discharge, or sexual 4 activity, the licensee performed pelvic and rectal examinations on this patient. The licensee has indicated that he would present testimony from this patient's mother, who hadreported that the child had been sexually active, but requested that such information not be included in her medical record. f. Around July 10, 1997, Patient J presented for treatment at the Perdue Wellness Center, with complaints of URI non-productive cough. The licensee conducted a breast examination. g. Around June 4, 1998, Patient K, a 30-year old female, presented at the Perdue Wellness Clinic "~th complaints of flu-like symptoms. After placing the stethoscope to Patient K's back, the licensee moved to her front and placed his hand inside her bra, cupping her left breast. The licensee then moved his hand across her chest and cupped her right breast. Patient K testified that the licensee did not touch her right breast during this examination:. Patient K testified that, while holding the stethoscope, the licensee placed his hand inside of her left bra cup and cupped her left breast while holding the stethoscope. Patient K testified that, when he was removing the stethoscope from her bra, the licensee brushed his hand across her left breast. h. Around December 10, 1998, Patient L, a 20-year old female, had lower back pain without problems urinating. While she was laying on the examination table, the licensee pulled up her shirt and bra, exposing both of her breasts and then felt each breast. Patient L testified that, during the 5 examination, the licensee touched a birthmark on her breast with his finger and asked what it was. 1. Around June 5, 1997, the licensee's 17-year old babysitter was in the Ohio Counry Ho~-pital for treatment for paroxysmal tachycardia. During his examination of this patient, the licensee pulled up her gown, undid her bra and used his hand to displace her breast while listening with his stethoscope. The assisting nurse testified that she considered the licensee's examination of this patient inappropriate because he held her left breast while placing the stethoscope above the patient's breast. J· Around November 1997, the licensee had inappropriate sexual contact with Patient Nl, a 17-year old female, during his examination of her breast(s). k. In late 1999, the Perdue Wellness Clinic teuninated its conuact with the licensee based upon the "weight" of complaints received from employees at that plant regarding bis examination of them. I. The relevant information in this case was reviewed by rwo Board consultants. While each consultant questioned the medical necessity of one or more of the examinations done by the licensee, they generally agreed that a cardiac examination was an appropriate medical choice available to the physician in the majority of cases presented for review. Neither saw any information that the licensee was actively fondling or massaging any patient's breasL Each consultant noted that, during a cardiac examination, there is some exposure of the patient' s breast(s) and 6 the physician may often be required to displace the breast with a hand to be able to proper! y evaluate the patient's heart and breath sounds. They each agreed that, if certain hypolhetical information presented by the licensee's counsel was troe, that would impact their opinions. Each consultant believed it would be reasonable for the Board to require some supervision, such as an approved chaperon, during the licensee's examination of sensitive areas of female patients. m. The licensee has indicated he would present evidence supporting his claims that each examination was medically necessary and appropriate. He would also present evidence that he employed a chaperon to be present with him during such examinations and the chaperon was present during all of the examinations described in the Complaint. n. The evidentiary hearing was stopped midway through the testimony so that the parties could informally resolve the Complaint with this Agreed Order. STIPULATED COl'iCLUSIONS OF LAW The parties agree to the following Stipulated Conclusions of Law, which serve as the legal bases for this Agreed Order: 1. The licensee's Kentucky medical license is subject to regulation and discipline by this Board. 2. While the evidence did not establish medic-ally inappropriate touching in the cases cited in the Complaint, the questionable medical necessity of various examinations conducted by the licensee provides an cvidemiary basis for a 7 finding of a violation of the Code of Ethics of the American Medical Association. Accordingly, there are legal grounds to support disciplinary action against the Licensee's medical license, pursuant to KRS 31 I .595(9), as illustrated by KRS 311.597(4). 3. Pursuant to KRS 31 1.591(6) and 201K.A..R9:082, the parties may fully and finally resolve I.he pending Complaint v.ithout a complete evidentiary hearing, by entering into an informal resolution such as this Agreed Order. AGREED ORDER Based upon the foregoing Stipulations ofFactandStipulatedConclusions of Law, and, based upon their mutual desire to fully and finally resolve tbe pending Complaint without further evidentiary proceedings, the parties hereby ENTER INTO the following AGREED ORDER: 1. The license to practice medicine in the Commonwealth of Kentucky held by Eric A. Norsworthy, M.D., SHALL BE SUBJECT to the terms and conditions ofthis AGREED ORDER for a period of five (5) years, unless otherwise ordered by the Panel; 2. During the effective period of the Agreed Order, the licensee is subject to the following terms and conditions: a. The licensee SHALL NOT conduct any examination of a female patient, involving the areas of the patient's body between her neck and ber knees, unless: i. the examination is medically necessary and medically appropriate; ii. an approved chaperon is present throughout the examination; and, iii. the patient is properly draped. 8 b. Any chaperon utilized by the licensee must be approved, in advance, by the Board or its staff and must agree in writing to l) remain present and within direct eyesight and within clear hearing distance of the licensee and the patient throughout the entire period the licensee is "~th a female patient; 2) accurately record the chaperon's presence, or absence, for the entiie duration of such patient interaction in the patient's chart, or the patient record maintained by that clinical setting; 3) immediately notify the designated contact person at the Board's of!ices to report any violation of the chaperon requirement by the licensee. The licensee way submit and the Board or its agents may approve more than one chaperon to fulfill this requirement The licensee shall be solely responsible for payment of the costs of such cbaperon(s). c. The licensee shall utilize approved chaperons on a rotating basis so that assigned approved chaperons change frequently and so that no chaperon acts as the exclusive chaperon for longer than a thirty-day period. d. Upon request, the licensee shall immediately make available any requested patient charts for feroale patients and/or any documentation about patient contacts outside of the office. The licensee shall also make available, upon request, the chaperon(s) for interview by Board agents regarding his compliance with that condition. e. He shall maintain his contracrual relationship with IPP and shall fully comply with all terms and conditions of that contracrual relationship, until released from suc11 requirement by the Panel. The terms and conditions of 9 that contractual relationship shall be detemuned by the Medical Director, IPP, in the exercise of his discretion, after completion and review of appropriate evaluation(s). f. He shall continue to eogage in therapeutic treatment as directed by the Medical Director, IPP and shall fully comply with all tt=tment directives, including medication directives, until released from such requirement by the Panel. As part of this restriction, the licensee shall arrange for each psychotherapist to provide quarterly written reportS to the Medical Director, IPP, detailing bis compliance '-'i th treatment directives, his cw:rcnr diagnoses, his current plan of treatment and his cmrent prognosis. g. Within six (6) months of the filing of this Agreed Order, the licensee shall successfully complete, at his expense, the course "Maintaining Proper Boundaries" at the Vanderbilt University Medical Center. h. The licensee may not ask for te.rmination of this Agreed Order for a minimum period of two (2) years from the date of its filing. The Panel will only consider such a request, after !he conclusion of that two-year time period, if there have be<:n no additional grievances regarding inappropriate sexual touching by the licensee and the request is accompanied by a favorable recommendation by the Medical Director, IPP. However, the burden of persuasion for such a request lies with the licensee and the Panel retains full discretion to grant or deny such a rcquesL 10 1. The licensee shall not violate any of the provisions of KRS 311.595 or 311.597. 3. The Panel Chair shall have the authority to issue an Emergency Order of Suspension or ReStriction immediately, after an ex parte presentation by Board's counsel, ifthe Chair concludes there is probable cause to believe I.he licensee has violated any condition set out in this Agreed Order and the violation occurred after the date of filing of this Agreed Order. 1 If the Panel Chair should issue such an Emergency Order, the parties agree that a violation of any term or condition of thls Agreed Order would render the licensee's practice an immediate danger to the health, welfare and safety of patients and the general public, pun;uant to KRS 311.592 and 138.125; accordingly, the only relevant question for any emergency hearing conducted pursuant lo KRS BB.125 would be whether the licensee violated a term or condition of this Agreed Order; 4. The Jie<:nsee understands and agrees that auy violation of this Agreed Order would aL.Iedical Society/Ohio County Hospital's Physician Hospital Organization ("PHO-') asked the licensee to 5 resign from the Perdue Clinic. Subsequently, the licensee "dropped out" or the Perdue Clinic for reasons that included his performing pelvic examinations after he was specifically told that he was no longer allowed co perform such examinations at that clinic. 10. On or around May 27, 2001, when IS-year-old Patient 0 was an in-patient at Ohio County Ho$Jlital, the licensee examined Patient 0 in an inappropriate manner by going up under her gown with his stethoscope, under the guise of listening to Patient O's heart to check for a heart murmur after he had looked at the lV in her femoral artery. 1 l. On or around May 29, 2001, while 15-year-old Patient 0 was still an in-patient at Ohio County Hosp ital, the licensee embarrassed and upset Patient 0 by inappropriately exposing both of Patient O's breasts and pubic area while Patient O's 17-year-old brother and her father were in Patient O's hospital room. 12. The licensee inappropriately "blocked" Patient O's mother so that she could not see what or how he was examining Patie1lt 0 when Patient 0 was being "examined" by the licensee at his office, in or around the period OctoberNovember. 2000. When Patient O's mother tried, at that time, to get next to him to see, the licensee would block her anemp ts by leaning over Patient 0 as if he was rrying 10 lie down on her. 13. On or around June 30, 2001, while Patient P was an in-patient at Ohio County Hospital, the licensee inappropriately touched Patient P's breast, under the guise or listening to her heart. 6 14. The licensee has engaged in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public or any member thereo[ 15. The licensee has had inappropriate "sex11al contact," as that term is defined in KRS 510.010(7), with patients while the patients were under his care. 16. The licensee has engaged in "sexual misconduct" as that term is defined in the American Medical Association's Code of Medical Ethics Current Opinion 8.14: "Sexual coniact that occurs concurrent with the physician-patient relationship." 17. The Principles of Medical Ethics, which have been adopted by the American Medical Association (AMA) and this Board, are "standards of conduct which define the essentials of honorable behavior for the physician." The licensee has engaged in conduct that violates Principles I, II, and IV of same; he has engaged in the inappropriate conduct of failing to respect human dignity, failing to deal honeStly with his patients and colleagues, and failing to respect the rights of his patients. 18. The licensee has failed to confom1 to the acceptable standards of medical practice in Kenl\lcky by performing unethical exams on patients. 19. By his conduct, as discussed herein, the licensee has violated KRS 311.595(5), KRS 311.595(9), KRS 311 .595(9), as illustrated by KRS 311.597(4); KRS 3 11.595(12) and 20] KAR 9:005 (J)(a); and KRS 311.595(13). Accordingly there are legal grounds for the Board :o impose disciplinary sanctions against the licensee's Kentucky medical license under said provisions. 20. The licensee is directed to respond to the allegations delineated in the Complaint within thirty (30) days of service thereof and is further given notice that: 7 (a) His failure to respond may be taken as an admission of the charges· ~ ' (b) He may appear alone or with counsel, may cross-examine all prosecution witnesses and offer evidence in his defe nse. 21. NOTICE TS HEREBY GTVEK that a heari ng on this Complaint is scheduled for January JO & 11, 2002, at theKenrucl..'Y Board of Medical Liccnsure, Hurstbourne Office Park, 310 Whittington Parl..·way, Suite lB, Louisville, Kentucky 40222. Said hearing shall be held pursuant to the Ru les and Regulations of the Kentucky Board of 1'.·fedical Licensure. This hearing shaH proceed as scheduled and the hearing date shall only be modified by leave of the Hearing Officer upon a showing of good cause. \VHEREFORE, Complainant prays that appropriate disciplinary action be taken agai nst the license to practice medicine held by Eric A. Norsworthy, M.D. This 2~th day of September, 200 I 6t14 PRESTON P. NUNNELLEY. MD. CHAIR, INQUIRY PAl'l"'ELB CERTmCATE OF SERVICE I certify that the origi nal of this Complaint was del ivered to Mr. C. Will iam Schmidt, Executive Director, Kentucl..-y 'Board of Medical Licensure, 310 Whittington Parkway, Suite lB. Louisvi lle, Kentucl..')' 40222 and copies were mailed, postage prepaid to Division of Administrative Rearim!.S. I 024 Capital Center Drive, Suite 200, Frankfort, K~ntucky 4060 1-8204; Jason R. Seg~leon, Esq., 712 Kentucky Ho~e Li~e Buil~jng, 23? South Fifth Stree<, Louisville, Kentucky ~0202; and a copy was mai led via certified mail 8 to Eric A. Norswonhy, M.D., 1219 Nonh Main Street, Beaver Dam, Kentucky 42320 on this the 24th day of September, 200 l. Y~E Assistant General Counsel Kentuclq• Board oflviedical Licensure 310 ~'hinington Park-way, Suire IB Louisville, Kentucky 40222 (502) 429-8046 9