STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HEALTH, Petitioner, DAVID SIMON, D.O., RESPON DENT. DOAH CASE NO. 13-4756PL DOH 2012-00680 PROPOSED RECOMMENDED ORDER Pursuant to notice, a ?nal hearing was held on May 20, 2014 in the above referenced case via video teleconference between Tallahassee and West Palm Beach I Florida before the Honorable John G. Van Landingham, an Administrative Law Judge assigned by the Division of Administrative Hearings. For Petitioner: Respondent: APPEARANCES Yolonda Y. Green, Esquire Mary S. Miller, Esq'uire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (850) 245?4444 Phone (850) 245-4683 Fax David W. Spicer, Esquire Jonathan W. Chambers, Esquire Law Of?ces of David W. Spicer, P.A. 11000 Prosperity Farms Road, Suite 104 Palm Beach Gardens, Florida 33410-3477 (561) 625-6066 Phone (561) 625-6016 Fax Filed July 15, 2014 4:55 PM Division of Administrative Hearings STATEMENT OF THE ISSUES Whether Respondent committed the violations alleged in the Administrative Complaint filed July 11, 2013, and, if so, what the penalty should be. PRELIMINARY STATEMENT 1. On July 11, 2013, Petitioner Department of Health (Petitioner), ?led a "two count Administrative Complaint against Respondent, David Simon, D.O. (Respondent), alleging he engaged in sexual misconduct with his patient. By filing the Administrative Complaint, Petitioner is attempting to affect Respondent?s substantial interest. I Respondent requested a formal hearing in a timely manner. Petitioner forwarded the matter to the Division of Administrative Hearings (DOAH), which scheduled and conducted the hearing in this matter. Record references use the following abbreviations: Pre-Hearing Stipulation (PHS) Final Hearing Transcript (Tr. P. Joint Exhibit (Jt. Ex. Petitioner's Exhibits (Pet. Ex. P. Proffered Exhibits (Prof. Ex. P. Respondent's Exhibits (Resp. Ex. 2. On January 6, 2014, Petitioner ?led an unopposed motion for continuance of the ?nal hearing in this matter. On January 7, 2014, an order was entered rescheduling the ?nal hearing in this matter for May 20 and 21, 2014. Both parties were present with their attorneys and concluded the hearing on May 20, 2014. . 3. At the May 20, 2014 ?nal hearing, the Administrative Law Judge granted of?cial recognition of Rules 64815-14002 and 64815-14003, Florida Administrative Code. The Administrative Law Judge denied Petitioner?s request to admit Respondent?s April 25, 2014 deposition into evidence in its entirety based on relevance, but allowed Petitioner to submit post-hearing Page and Line designations from Respondent?s April 25', 2014 deposition. Respondent was granted the opportunity to object to Petitioner?s Page and Line designations. Petitioner?s Amended Motion for Clari?cation concerning the Page" and Line designations was granted on May 27, 2014, which granted Petitioner the opportunity to respond to Respondent?s objections to the Page and Line designatiOnsand Respondent an opportunity to request that additional parts of the deposition be introduced into evidence in accordance with Rule Fla. Civ. P. The Administrative Law Judge further ruled that the Petitioner shall be deemed to have proffered any of Respondents deposition testimony that-the Administrative Law Judge excluded from evidence. On_ June 25, 2014, the Administrative Law Judge entered his Order on Petitioner's Page and Line Designations of Respondents April 25, 2014 depQSItion (Order). 4. At the May 20, 2014 hearing, Petitioner presented the testimony of Respondent, who appeared in person in Tallahassee, Florida. Joint Exhibit-1, the Respondent?s medical records for Patient C.K., was offered and received into evidence. Petitioner offered Petitioner?s Exhibits 1 and 6 into evidence. PetitiOner?s Exhibit 6 was received into evidence. Portions of Petitioner?s Exhibitl, Respondent?s April 25, 2014 Deposition Transcript, Was received pursuant to the Administrative Law Judge?s June 25, 2014 Order.1 Respondent presented the testimony of Mary Scanlon, D.O. who appeared 1 The following pages and lines from Respondent?s April 25, 2014 deposition were received into evidenceThe following pages and lines from Respondent?s April 25, 2014 deposition were objected to on the basis of relevance and/or cumulative which were sustained by the Administrative Law Judge were ruled proffered testimony21: 15; 33:5 34:14; 35: 4 - 16; 3639:20 41: 10; 42:9 11; 43:4 13; 17 22; 44:8 10; 45:14 46:3; 46:8 47: 8; 76:8 12. via video teleconference from West Palm Beach, Florida, and the expert testimony of Virginia Bush, M.S.W., who appeared in person, in Tallahassee, Florida. Respondent offered Respondent?s Exhibits 1 through 3, which were received into evidence. Respondent proffered P. 10, L. 22 23 of Petitioner's Exhibit '1 into evidence. 5. A one volume transcript of the May 20, 2014 ?nal hearing was filed on July 9, 2012. Pursuant to the Administrative Law Judge?s June 25, 2014 Order, the parties" Proposed Recommended Orders were to be submitted to DOAH on or before July 15, I 2014. Petitioner ?led its Proposed Recommended Order in a timely manner. FINDINGS OF FACT 1. Petitioner is the state department charged with regulating the practice of nursing pursuant to Section 20.43, Florida Statutes-Chapter 456, Florida Statutes; and Chapter 459, Florida Statutes. (PHS). The Florida Board of Osteopathic Medicine is the I entity responsible for imposing penalties against osteopathic physicians for violations of Sections and Florida Statutes. (PHS). 2. Theparties stipulated that at all times material to Petitioner?s Administrative Complaint, Respondent was a licensed osteopathic physician having been issued license number OS 4930. Respondent's address of record was 101 South Federal Highway, Lake Worth, Florida 33460, where he practiced family medicine. 3. Patient C.K. is a 37 year-old female patient who was Respondent's patient. (Jt. Ex. 1). Patient C.K. initially presented to Respondent in May 2005. (Tr2). Respondent treated Patient C.K. from May 2005 until December 2011 for routine examinations, thyroid problems, orthopedic problems, anxiety, and depression. (JtPatient primary care physician, Respondent knew about and treated Patient disorders during the six years he treated her. (Jt. Ex. 1, PP. 90, 91-92, 105, 104, 111a, 107, 152?154, 166, 138, 109, 146-148). Patient disorders included: depression; panic disorder, Generalized Anxiety DisOrder; bipolar disorder; bulimia; and agoraphobia. (Jt92; 105, 104, 111a, 107, 152 154, 166, 138, 109, 146 14819;, L. 24 P. 4014). Respondent treated Patient disorders with medications including: Effexor; Prozac; Abili?/; Seroquel; Clonazepam; and Wellbutrin. (Jt. Ex. 1; PP. 90, 91 92; 105, 104, 111a, 107, 152 154, 166, 138, 109, 146 148). Respondent also referred Patient C.K. to a treat her bulimia. (Tr. P. 90, L. 17 18). During the years he treated Patient C.K., Respondent acknowledged that the physician?patient relationship required trust and Patient C.K. trusted Respondent as her I physician. (Tr. P. 47, L. 10 16; Prof8). .4. During an of?ce visit on September 6, 2006, Respondent diagnosed Patient C.K. with GAD, documented she experienced consistent with panic disorder, and increased her Effexor prescription to 75 milligrams (Jt19). Effexor is used to treat anxiety. (TrRespondents practice created templates for Respondent's use as progress notes during patient of?ce visits. (Tr. P. 39, 2 10). Medical assistants pulled an appropriate template when the patient arrived for the office visit by matching the template to the patient's stated complaints. Id. For example, when a patient presented to Respondent for a routine gynecological examination, a medical assistant pulled a template captioned ?Gynecological Examination" for Respondent to complete during the patient?s of?ce visit. (Jt10). 6. In a Complaint Treatment Template Note for Patient C.K. dated March 15, 2007, ReSpondent documented Patient C.K. suffered from anxiety under the . . additional history portion of the treatment note and in his impression of the patient?s condition. (Jt39,. L. 1). Although not reflected on the March 15, 2007 treatment note, Patient C.K. must have complained of anxiety or another problem to Respondent's medical assistants when she presented to Respondent's practice because Respondent used a Complaint template to document Patient March 15, 2007 of?ce visit. (Jt. Ex. 1, PP. 91 - 92;. Tr. P. 3.9, L. 2 10). I 7. On May 26, 2010, Respondent prescribed Seroqueland documented a diagnosed Patient C.K. with bipolar disorder. (Jt. Ex. 1, P. 105; Tr. P. 40,1. 13 P. 42, L. Respondent prescribed Seroquel to. Patient C.K. for her anxiety and depression, not her bipolar disorder, even though Seroquel is indicated for the treatment of bipolar disorder. 10'. Respondent also documented Patient C.K. complained of bulimia and depression and?depression and was treating with a (Jt. Ex. 1, P. 10512). I I 8. On June 30, 2014, Respondent prescribed Abilify to Patient C.K. and increased the dosage of her Prozac prescription to treat the patient's complaints of increased depresSion. (Jt. Ex. 1, P. 1041). Both Abilify and Prozac are antidepressants. (Tr1). Respondent documented his impression of Patient C.K. was depression, anxiety, and bulimia during this of?ce visit. (Jt. Ex. 1, P. 104October 5, 2010, Respondent authorized re?lling Patient antidepressant and antianxiety medications: EffexOr, Prozac, and Clonazepam. (Jt9). Respondent prescribed Clonazepam, a benzodiazepine. -. with the risk of addiction, to Patient C.K. to treat her anxiety. [at 10. Patient C.K. presented to Respondent on October 12, 2010 for a routine gynecological examination. (Jt11). Respondent testi?ed that Patient C.K. reported a history of recent sexual activity with multiple men on multiple nights during a trip to Las Vegas and she expressed concern about potential exposure to a sexually transmitted disease21). Respondent claims when Patient C.K. gave Respondent. the history of her trip to Las Vegas, she showed him nude pictures of herself on her cellular telephone with a sign around her neck with a pejorative word written 21). However, Respondent?s assertions that C.K. showed him a nude photo are not credible because he could not explain the circumstances in which C.K. allegedly shared the photographs with him. Patient C.K. and Respondent exchanged some sexual banter after she reported the history of the sexual activity in Las Vegas. r. P. 52, L. 8 15). I 11. Respondent learned about Patient trip to Las Vegas during his assessment of the patient. (Tr. P. 50, L. 19 22). Respondent's medical assistant was not in the examination room during Respondent?s assessment of the patient when Patient C.K. told Respondent about her trip to Las Vegas. (Tr15). I 12. Patient PAP smear from October 12, 2010 was normal. (Jt. Ex. 1, P. 15124). Although patients are not normally called about the results of a normal PAP smear, Respondent called Patient C.K. purportedly to notify her that her test results were normal because she was anxious about the test results. (Tr17). However, Respondent did not document his discussion with the patient in the medical record. The more credible evidence is that Respondent called the patient to continue the sexual banter and invite the patient to his of?ce to engage in sexual activity. (Tr16). Respondent admitted he ultimately cal-led- Patient C.K. on her cell phone and invited her to ?get together for-sexual activity for-the ?rst time, at his medical practice.? Id. 13. In addition, Respondent chose to interpret Patient history about her weekend in Las Vegas as an invitation for Respondent's personal sexual grati?cation instead of a potential sign or of her bipolar disorder or depression. [at Respondent, as Patient treating physician, was fully aware of her disorders because he managed her medications and saw her- in his office as a patient On a regular basis. Ex. 1). 14. Respondent used his position of authority and trust with Patient C.K. to engage in sexual activity. (Jt119, L. 19 P. 120, L. 12). In November or December 2010, Respondent and Patient C.K. started their sexual activity. (Tr. P. 55, L. 8 14). Respondent acknowledged that his sexual activity with Patient C.K. began because Patient C.K. seemed sexually adventurous, she indicated interest, it was new, and it was fun. (rrProf10). Respondent also testi?ed clearly and without hesitation that he made the wrong decision, he did not say no, and the decision ?ruined everything.? (Tr. P. I 56, L. 8 14). Respondent further testi?ed that a physician should never have sex with a patient; he knew the sexual activity with Patient C.K. was improper and should not have started. (Tr29;. P. 119, L. 19 P. 120, L. 12). Respondent engaged in sexual activity for his grati?cation. r. P. 119, L. 19 P. 120, L. 12). 15. Respondent?s sexual misconduct with Patient C.K. was not an isolated? incident. From December 2010 until December 2011, Respondent and Patient C.K. met - once or twice per month for sex at Respondent?s medical practice24). For approximately one year, Respondent affirmatively chose to engage in a sexual activity with his patient at least once per month at his medical practice. Id. Typically, Respondent invited Patient C.K. to meet him at his medical practice for their sexual encounters either by calling her on her cellular telephone or sending her a text message. (Tr. P. 106, L. 21 - P. 107, L. 8). - I 16. Respondent?s sexual activity with Patient C.K. involved sadomasochism or (TrProf24). Respondent admitted that he was the dominant partner and Patient C.K. was the submissiVe partner in the relationship. (TrProf24). Respondent testi?ed clearly and without hesitation that he performed ?sexually adventurous activities? on Patient C.K. in his medical practice, where Respondent exhibited all of his authority as Patient primary care physician. (Tr. P. 87, L. 4 6; Prof8). 17. Respondent?s activities with Patient C.K. included restraining her with ropes, using whips, blindfolds, restraining her with handcuffs, suspending her from- cabinets, using clamps, putting Patient C.K. in a closet, and oral sex. (Prof3). Respondent admitted he performed these activities on Patient GK. and she did not perform these activities on him. (Prof3). Respondent testi?ed he bought most of the sex toys they used during their encounters and kept them in his of?ce. (Prof8?1m. 18. Respondent admitted that Patient C.K. complained that some of the things he did to her during their sexual activity hurt her, but she never asked him to stop. (Tr16). Respondent also acknowledged that a patient is unable to consent to a sexual relationship with her physician. (Tr. P. 89, L. 21 23). Respondent also admitted a physician should never have a relationship with a patient. (Tr20). 19. Merriam Webster?s On?Line Dictionary (2014) de?nes sadism as 1: a sexual perversion in which grati?cation is obtained by the inflection of physical or mental pain on others-(as on a love object) compare MASOCHISM 2 a delight in cruelty b: excessive cruelty. - 20. Merriam Webster?s On-Line Dictionary (2014) de?nes masochism as 1: a sexual perversion characterized by pleasure in being subjected to pain or humiliation 10 especially by a love object compare SADISM 2 pleasure in being abused or dominated a taste for suffering. 21. Merriam Webster?s On-Line Dictionary (2014) de?nes sadomasochism as the derivation of pleasure from the inflection of physical or men'tallpain either on others or on oneself. 22. Merriam Webster?s On-Line Dictionary (2014) de?nes dominant?as 1: a commanding, controlling, or prevailing over all others b: very important, powerful, or successful. . . . 23. Merriam Webster?s On-Line Dictionary (2014) de?nes submissive as willing to obey someone else; submitting to others. 24. The American Association?s Diagnostic Statistic Manual of Mental Disorders (DSM) is a classification of mental disorders with associated criteria designed to facilitate reliable diagnoses of these disorders and has become the standard reference manual for 'clinical practice in mental health ?eld. DSM-V (5?5 Ed. 2013). The DSM recently released the DSM-IV for mental disorders, which included under paraphilic disorders, sexual masochism disorder and sexual sadism disorder. Ed. 2013?). The DSM-V diStinguishes between atypical sexual interests and mental disorders. DSM-V (5th Ed. 2013). According to the DSM-V, most people withatypical sexual interests do n0t have a mental disorder. To be diagnosed with a paraphilic disorder such as sexual masochism or sexual sadism disorder, people with atypical sexual interests must also feel distress about their interest, not just distress resulting from social disapproval or have a - sexual desire or behavior involving another person's distress, injLIry, or 11 death or'a desire for sexual behavior involving unwilling people or people unable to legally consent to the activities. Ed. 2013). 25. The DSM does not include diagnostic criteria for heterosexual sex or homosexual sex. 26. Respondent agreed that submissive partners in relationships trust- their dominant partners and Patient C.K., as the submissive partner in their sexual relationship, trusted him as the dominant partner in their sexual relationship. (Prof. Ex'. P. 43, L. 4 10). Respondent also agreed that submissive partners in relationships trust in their dOminant partners, is like patients? trust in their physicians. (Prof1.3). 27. Respondent never discharged PatientIC.K. from his practice after he began his sexualactivity with her. (Tr. P. 56, L. 23 25). Respondent continued treating Patient C.K. as his patient from December 2010 until December 2011, including the management of Patient antidepressant and antianxiety medications. (Tr108,: P. 107; PP. 152 154; P. 138; P. 109; PP. 146 148). Throughout their year-long sexual relationship, Patient was completely dependent on Respondent for all of her medical needs, including authorization of re?lls for her antidepressant and antianxiety medications such as Effexor, Prozac, Abilify, Wellbutrin, Seroquel, and Clonazepam. Id. Respondent controlled Patient access to medical treatment, including prescribing and re?lling her anti-anxiety and antidepressant medications. [at 12 I 28. On December 23, 2010, Respondent completed a Residual Functional Capacity Questionnaire on Patient behalf. (Jt. Ex. 1, PP. 152 154). Respondent documented Patient diagnoses were depression and agoraphobia. (Jt. Ex. 1, PP. 152 15425). Respondent further documented Patient prognosis was poor because her depression and agoraphobia were chronic conditions. (Jt. Ex. 1, PP. 152 154; Tr. P. 99, 1 8). Respondent completed this Residual Functional I Capacity Questionnaire for Patient C.K. during the timeframe he commenced-his sexual relationship with Patient C.K. (Jt. Ex. 1, PP. 152 154; Tr. 93, 7 14).2 29. On December 31, 2010, after Respondent and Patient C.K. commenced their sexual relationship, Respondent authorized a refill. for Patient clonazepam prescription. (Jt. Ex. 1, P. 16630. After Respondent commenced his sexual activity with Patient C.K., Respondent's practice responded to a Supplemental Health Impairment Questionnaire from the Social Security Administration on Patient behalf on January 25, 2011, seeking copies of her medical recOrds. (Pet. Ex. 6, P. 141). Respondent testi?ed that R.M., a medical assistant in his of?ce faxed Patient medical records, but does not know if Patient'C.K. was awarded disability bene?ts. (Pet. Ex. 6, P. 141; Tr. P. 100, L. 9 P. 101, L. 25). 31. On September .14, 2011, Patient C.K. presented to ReSpondent for an of?ce yisit as a patient. (Jt. Ex. 1, P. 109). Respondent documented in the September 14, 2011 treatment note for Patient C.K. that he prescribed Prozac and Wellbutrin to treat Patient _2 Respondent testi?ed he believed his sexual activitylwith Patient C.K. began sometime before Christmas 2010. -13 depression. (Jt. Ex. 1, P. 109; Tr. P. 102, L. 1 P. 103, L. 5). Patient September 14,2011 of?ce visit with Respondent occurred after Respondent commenced hissexual activity with Patient C.K. (Tr. P. 102, L. 1 4 P. 103, L. 5). 32. I Patient C.K. was admitted to JFK Hospital on December 13, 2011 following a . suicide attempt. (Jt. Ex. 1, PP. 146 148; Tr. P. 104, L. 14 P. 105, L. to Patient discharge report from JFK Hospital, Patient history includes depression and prior suicide attempts, her were described as severe and she was admitted to the hospital. Id. Respondent did not know when this report arrived in his of?ce and denied knowing Patient C.K. was hospitalized in December 2011. Cl? r. 105, L. 15 P. 106, L. 14). 33. However, Respondent previously testi?ed he learned Patient C.K. had been hospitalized at JFK Hospital when he received a text message or received the discharge report from JFK Hospital on December 22 or December 23, 2011. (Prof12). Therefore, Respondent?s testimony that he did. not know about'Patient hospitalization at JFK Hospital in December 2011 is not credible. Id. 34. Patient C.K. revoked any consent she may have previously given to her sexual activities with Respondent and called the police about their sexual activities. r. P. 115, L. 25 P. 117, L. 5). Respondents physiCian patient and sexual activity with. Patient C.K. ended on December 23, 2011. (Tr. P. 114, L. 19 P. 115, L. 3). Respondent stipulated that Patient called the police who arrived at Respondent's of?ce to investigate, but no charges were filed. (Tr. P. 115, L. 25 P. 117, L. 5). 14 35. Respondent called Virginia Bush, MSW concerning whether Respondent would engage in sexual misconduct with a patient in the future. Ms. Bush acknowledged that Respondent engaged in sexual misconduct with Patient C.K. (Tr. p. 160, line 15-18) Although, Ms. Bush testi?ed that Respondent would never engage in the sexual misconduct with a patient in the future. (Tr. P. 152). However, there is no support for Ms. Bush?s speculations. 36. Ms. Bush. did not conduct a complete and objective assessment of Respondent. Ms. Bush failed to obtain objective evidence of the allegations. Speci?cally, Ms. Bush failed to speak to Respondent's eight (8) staff members who may have provided valuable insight into Respondent?s behavior, and she failed to objectively con?rm Respondent?s statements. (Tr. P. 157, line 21-P. 158, line 20) Ms. Bush merely interviewed Respondent?s wife who obtained all information related to the incident from Respondent?s self-interested version of the events; and his of?ce (mate) who readily testi?ed that Respondent was her mentor since the beginning of her career. .Thus Dr. Scanlon?s testimony is not without bias. 37. Respondentacknowledged that his sexual activity with Patient C.K. should not have started and was improper. (Tr. P. 119, L. 19 P. 120, L. 12). At the commencement of the formal hearing, Respondent conceded he violated the praCtice act by engaging in sexual misconduct with the patient, but the issue for this hearing was the discipline which should be imposed on him'for the violation. (TrCONCLUSIONS OF LAW 38. The Division of Administrative Hearings has personal and subjectmatter jurisdiction in this proceeding pursuant to Sections 120.569," Section Florida Statutes (2013). - - 39. Petitioner brought a two count Administrative Complaint against Respondent. (PHS). Both counts are based on. the same conduct, namely, Respondent?s approximately year-long sexual activity with Patient C.114, L. 19 P. 115, L. 3). At the beginning of the hearing, Respondent acknowledged he engaged in sexual activity with Patient C.K. and that his conduct violated the practice act. (Tr2). Therefore, the issue remaining is to determine the appropriate discipline to be imposed against Respondent's osteopathic physician?s license. 40. The Department is seeks to imposition of, among other penalties, the revocation or suspension of Respondent?s license to practice osteopathic medicine in Florida. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm?h, 281 So. 2d 487, 491 (Fla. 1973). To impose discipline, Petitioner must prove the charges against Respondent by clear and convincing evidence. Dep?t of Banking 8: Fin. v. Osborne Stern and (30., 670 So. 2d 932 (Fla. 1996) (citing Ferris v. Tur/ington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep?t of Bus. Prof Reg, Bci ofMedicme, 654 So. 2d 205, 207 (Fla. 1st DCA 1995). 41. The clear and convincing evidence standard was de?ned in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), as follows: 16 Clear and convincing evidence requires that the evidence requires that the . evidence must be found to be credible; the facts to which the witnesses testify must be remember; the evidence must be precise and explicit and the witnesses must be lacing in confusion as the facts in issue. The evidence must be of such weight that it produces in the mind of the . trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker,, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). The Florida Supreme Court later adopted the Slomowitz court?s definition of clear and convincing evidence. See In re Dal/ex, 645 So. 2d 398, 404 (Fla. 1994). The District Court of Appeal also has followed the Slomowfitz' test. Specifically commenting that ?although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence which is ambiguous.? Westinghouse Electric Corp., Inc. v. Shu/er . Bros, Inc, 590 So. 2d 986, 988 (Fla. Ilst DCA 1991). 42. In' its two count AdministrativeComplaint, Petitioner'charged Respondent with violations of Sections Florida Statutes (2010, 2011), by violating . Section 459.0141, Florida Statutes (2010, 2011) and Section Count One of Petitioner?s Administrative Complaint alleged Respondent violated Section Florida Statutes (2010, 2011), as defined and prohibited by Section 459.0141, Florida Statutes (2010, 2011), by engaging in sexual misconduct in the practice of osteopathic by violating the osteopathic physician through which the osteopathic physician uses the relationship to induce or attempt to induce the patient to engage, or attempt to engage the patient in sexual activity outside the scope of the generally accepted examination or treatment of the patient. 43. Section 459.0141, Florida Statutes (2010, 2011), provides: The osteopathic physician-patient relationship is founded on mutual trust. 17 Sexual misconduct in the practice of osteopathic medicine means violation of the osteopathic physician?patient relationship through which the osteopathic physician uses the relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the-scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of osteopathic medicine is prohibited. 44. As to Count One and Two, the evidence is clear that Respondent engaged in sexual misconduct With Patient C.K. Respondent admitted during the'formal hearing that he violated the Florida Statutes governing his practice of Osteopathic medicine by engaging in sexual activity with Patient C.K. 45. SpeCifically, as to Count Two of Petitioner?s Administrative Complaint, Petitioner has shown by clear and convincing evidence that Respondent violated Section. Florida Statutes (2010, 2011), subjects a licensee to discipline for exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient is presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her physician. 46. The evidence clearly demonstrates that Respondent exercised infernce within the patient-physician relationship for the purpose of engaging insexual activity. The evidence persuasively demonstrates that on October 12, 2010, Patient C.K. presented to Respondent for a pelvic exam and pap smear following sexual activity unrelated to Respondent. Respondent took patient history regarding sexual activity to provide treatment to Patient C.K. Respondent used the information he obtained as her physician and engaged the patient in sexual ?banter?. According to Respondent, Patient C.K. stopped by his of?ce unannounced during non-business hours. At. that time, he engaged - 18 in sexual banter related to the Patient?s reported history of provided by the patienthring the October 12, 2010 visit. Respondent ultimately contacted Patient C.K. by phone and invited her to his of?ce to engage in sexual activity. For approximately one year, Respondent engaged in sexual activity once or twicea month. More importantly, all of the sexual activity took place only at Respondent's of?ce and Respondent. stored all of the sexual toys used during the sexual encounters at his of?ce. 47. The evidence is clear that Respondent engaged in sexual banter with Patient C.K. after he obtained information as physician. Respondent's sexual banter with Patient C.K. progressed to sexual activity in his office. RespOnden-t?s sexLIal activity at his office with Patient C.K. continued for nearly one year. Respondent?s action clearly demonstrates that he engaged in sexual misconduct in the practice of osteopathic medicine. 48. The appropriate-discipline in this matter should be imposed according to Rule 64315-19002, Florida Administrative Code which provides the following recommended range of penalties: For a violation of Section Florida Statutes (2010, 2011), or Section Florida Statutes (2010, 2011), by violating Section 459.0141, Florida Statutes (2010, 2011); From probation and ?ne to revocation and a $10,000 fine. 49. Rule64BlS-19.003, FAC, provides that, in applying the penalty guidelines, the following aggravating and mitigating circumstances are to be taken into account: - 3 All references to the Fiorida Administrative Code reference the rule as it was in effect for the times relevant to this Administrative Complaint. 19 (1) The danger to the public; (2) The length of time since the violations; (3) The number of times the licensee has been previously disciplined by the Board; (4) The length of time the licensee has practiced; (5) The actual damage, physical or othenlvise, caused by the violation; (6) The deterrent effect of the penalty imposed; (7) The effect of penalty upon the licensee?s livelihood; (8) Any effort of rehabilitation by the licensee; (9) The actual knowledge of the-licensee pertaining to the violation; (10) Attempts by the licensee to correct or stop violations or refusal by licensee tocorrect or stop violations; (11) Related violations against licensee in another state, including ?ndings of guilt or innocence; penalties imposed and penalties served; (12) The actual negligence of the licensee pertaining to any violations; (13) The penalties imposed for related offenses; (14) The pecuniary gain to the licensee; and (15) Any other relevant mitigating or aggravating 50. There are two aggravating factors applicable here. First aggravating factor proven in this case is the danger to the public posed by an osteopathic physician who uses his position and authority as a physician to engage an emotionally and -20 vulnerable patient in sexual activityfor approximately one year for his own sexual gratification. The second aggravating factor prove'n' is that Respondent did not make attempts to stop. by the violation on his own accord. He continued the relationship until law enforcement became involved. 21 RECOMM EN DATION Based on the foregoing Findings of Fact and Conclusions of 'Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order; 1. Adopting the Findings of Fact and Conclusions of Law; 2. Finding that Respondent violated Section and Section Florida Statutes (2010, 2011), by violating Section 459.0141, Florida Statutes, as alleged in the Administrative Complaint; 3. Revoking Respondent's license to practice osteopathic medicine; and 4. Imposing a $5,000.00 administrative ?ne. DONE AND ORDERED this day of - 2014,in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 - (850) 488-9675 . Fax? Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of 2014 22 Copies Furnished to: Yolonda Y. Green, Esquire Mary Miller, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 David W. Spicer, Esquire Jonathan W. Chambers, Esquire Law Of?ces of David W. Spicer, P.A. 11000 Prosperity Farms Road, Suite 104 Palm Beach Gardens, Florida 33410-3477 Christina Robinson Executive Director . Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 John M.D., FACS State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Jennifer Tschetter, General Counsel Department of Health 4052 Bald cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Jamie Briggs, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399?1701 23 RI HT I All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be ?led with the agency that will issue the final order in these cases. 24 Respectfully Submitted, Y6 0nda Green Florida Bar No. 738115 Mary Miller Florida Bar No. 0780420 Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin Tallahassee, FL 32399-3265 (850) 245?4444 . (850) 245-4383 FAX CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Arias furnished by email to David W. Spicer at this [5 day of July, 2014. . Yolo? l? Assis nt General Counsel 25