06-001475PL Department Of Health, Board Of Medicine vs. Cranford Richard Powell Status: Closed Recommended Order on Monday, December 18, 2006.

Summary: It was not proven that Respondent engaged in sexual misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) )

BOARD OF MEDICINE, )

)

Petitioner, ) Case No. 06-1475PL

)

vs. )

)

CRANFORD RICHARD POWELL, )

)

Respondent. )

RECOMMENDED ORDER

Notice was provided and on June 20, 2006, a formal hearing

was held in this case pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2005). The hearing commenced at

10:00 a.m. The hearing location was City Hall, Commission

Chambers, 10 North Grove Street, Eustis, Florida. Charles C.

Adams, Administrative Law Judge, conducted the hearing.

APPEARANCES

For Petitioner: April Dawn Skilling, Esquire

Carol Gregg, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802-2753

STATEMENT OF THE ISSUE

Should discipline be imposed by the State of Florida, Board

of Medicine (the Board), against Respondent's physician

assistant's license for alleged inappropriate conduct in

relation to Patient T.S.?

PRELIMINARY STATEMENT

On July 18, 2005, an Administrative Complaint was signed

before the State of Florida, Department of Health (the

Department), naming the Department as Petitioner in an action

against Respondent, Case No. 2004-42014. The Department's

Administrative Complaint noticed Petitioner of his rights to

request a hearing to be conducted in accordance with Sections

120.569 and 120.57, Florida Statutes (2005). Respondent was

also provided with a form to elect the right, among other

options, to dispute the underlying allegations of fact in the

Administrative Complaint and request a formal hearing in

accordance with Sections 120.569(2)(a) and 120.57(1), Florida

Statutes (2005), before an Administrative Law Judge with the

Division of Administrative Hearings (DOAH). In accordance with

that opportunity, Respondent executed that election by a

notarized signature on the form.

The gravamen of the Administrative Complaint is set out

where it says:

11. On or about November 26, 2004,

Patient T.S. presented herself unattended to

Care First with complaints of coughing and

chest congestion.

12. Respondent met with Patient T.S. in an

examination room with no other persons

present.

13. During the examination, Respondent

asked Patient T.S. about her relationship

with Patient R.P., and Patient T.S.

explained their relationship to Respondent.

14. At the end of the examination,

Respondent unexpectedly approached

Patient T.S. and, without her consent, gave

her a full, frontal hug, telling her "I love

you."

15. Respondent then kissed Patient T.S.

full on the lips, without her consent, and

exited the room.

On April 25, 2006, the case was forwarded to DOAH for

assignment of an administrative law judge to conduct a formal

hearing. Notice was provided and the hearing proceeded on the

aforementioned date.

The Department filed a written notice of scrivener's error

indicating that the reference within the Administrative

Complaint to November 17, 2004, should be corrected to reflect

November 16, 2004. That notice and request were not opposed.

The request to change the date was granted at hearing. In

addition, Petitioner by a stipulation requested that the

statutory citation within the Administrative Complaint

reflecting the year 2003 be changed to 2004. That stipulation

was accepted. Discussion in the Recommended Order concerning

the Florida Statutes will refer to the substantive law within

Chapters 456 and 458 in effect in 2004.

Petitioner requested that official recognition be provided

to Sections 456.063(1), 456.072(1)(u), 458.329, 458.331(1)(j),

and (t) and 458.347(7)(g), Florida Statutes (2004). That

request was granted.

Petitioner called Patient T.S and Patient R.P. as its

witnesses. Respondent testified in his own behalf and presented

Dr. William Weaver and Llara Weaver as his witnesses.

Petitioner presented Patient T.S. as a rebuttal witness. Joint

Exhibit numbered 1, Joint Composite Exhibit numbered 2, and

Joint Exhibit numbered 3 were admitted. Petitioner's Exhibits

numbered 1 through 3 were admitted. Petitioner's Exhibit

numbered 1 is a copy of Florida Administrative Code Rule 64B-

8.006. Petitioner's Exhibit numbered 2 is constituted of

Respondent's answers to Petitioner's first set of

interrogatories. Petitioner's Exhibit numbered 3 was admitted,

limited to its use for impeachment purposes in relation to the

exhibit, the deposition of Dr. William Weaver given June 14,

2006, compared to his testimony at hearing. Respondent's

Exhibit numbered 1 was admitted.

Consistent with an order requiring the parties to file a

prehearing stipulation, the parties filed a statement of facts

admitted and requiring no proof. The factual stipulations are

set forth in the findings of fact to the Recommended Order.

On July 11, 2006, a hearing transcript was filed.

Petitioner and Respondent filed proposed recommended orders

which have been considered in preparing the Recommended Order.

FINDINGS OF FACT

Stipulated Facts :

1. Petitioner is the state department charged with

regulating the practice of medicine pursuant to Section 20.43,

Florida Statutes; Chapter 456, Florida Statutes; and Chapter

458, Florida Statutes.

2. At all times material to this Complaint, Respondent was

a licensed physician assistant within the State of Florida,

having been issued license number PA 3346 on May 28, 1997.

3. Respondent's address of record is 2608 Maywood Street,

Eustis, Florida 32726-2063.

4. Respondent is a physician assistant at Care First of

Central Florida (hereinafter "Care First"), 15050 U.S. Highway

441, Eustis, Florida 32726.

5. Patient T.S., (a.k.a. T.B.), and her daughters had been

patients of Care First for several years for various family

medical matters.

6. On or about November 16, 2004, Patient T.S. met

Respondent for the first time when Patient T.S. accompanied

Patient R.P., her significant other, to Patient R.P.'s

appointment with Respondent at Care First.

7. During Patient R.P.'s appointment, Patient T.S.

discussed a problem she was experiencing with fibromyalgia (a

condition that causes widespread muscle and soft tissue pain and

tenderness, especially in the trunk, neck, and shoulders).

8. Respondent suggested Patient T.S. make an appointment

with him for a checkup of her condition.

9. Patient T.S. made the appointment for the following

day, November 17, 2004, and attended her appointment accompanied

by Patient R.P.

10. Respondent thoroughly and appropriately examined

Patient T.S. on November 17, 2004.

11. On or about November 26, 2004, Patient T.S. presented

herself unattended to Care First with complaints of coughing and

chest congestion.

12. Respondent met with Patient T.S. in an examination

room with no other persons present.

13. Respondent returned to the examination room, gave

Patient T.S. some medication for her condition, and exited the

room. 1/

Prior Disciplinary History :

14. There was no indication that Respondent had been

accused of any prior wrongdoing involving his practice as a

physician assistant.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matter and the

parties in this case in accordance with Sections 120.569,

120.57(1) and 456.073(5), Florida Statutes (2005).

16. The Department by the Administrative Complaint has

made accusations against Respondent, calling for discipline to

be imposed by the Board for violations set out in two separate

counts to the Administrative Complaint. They involve the

contention that Respondent intended to engage in sexual

misconduct with Patient T.S., as evidenced by: (a) engaging

Patient T.S. in full, frontal hug and (b) kissing Patient T.S.

on her lips. Mention is also made of an alleged remark to

Patient T.S., "I love you."

17. Recognizing the nature of this case, Petitioner bears

the burden to prove the allegations in the Administrative

Complaint by clear and convincing evidence. See § 120.57(1)(j),

Fla. Stat. (2005); see also Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

18. The meaning of clear and convincing evidence is

explained in the case In re: Davey , 645 So. 2d 398 (Fla. 1994),

quoting, with approval from Slomowitz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

19. Respondent is a "health care practitioner" and

"licensee" within the definitions set forth in Section

456.001(4) and (6), Florida Statutes (2004), respectively. As

such, he is subject to disciplinary provisions that are set out

in Chapter 456, Florida Statutes (2004). Furthermore, the Board

may impose any of the penalties authorized under Sections

456.072 and 458.331(2), Florida Statutes (2004), upon Respondent

as a physician assistant.

20. The prior disciplinary provisions are made applicable

to the Respondent as a physician assistant under authority set

forth in Section 458.347(7)(g), Florida Statutes (2004), which

states:

The Board of Medicine may impose any of the

penalties authorized under ss. 456.072 and

458.331(2) upon a physician assistant if the

physician assistant . . . has been found

guilty of or is being investigated for any

act that constitutes a violation of this

chapter or chapter 456.

21. Physicians and physician assistants are held

accountable under Section 458.329, Florida Statutes (2004),

which states:

The physician-patient relationship is

founded on mutual trust. Sexual misconduct

in the practice of medicine means violation

of the physician-patient relationship

through which the physician uses said

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

medicine is prohibited.

22. Florida Administrative Code Rule 64B8-9.008, related

to Respondent as a physician assistant, in pertinent part

defines sexual misconduct where it states:

(1) Sexual contact with a patient is sexual

misconduct and is a violation of Sections

458.329 and 458.331(1)(j), F.S.

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but is not limited to:

(a) Sexual behavior or involvement with a

patient including verbal or physical

behavior which

1. May reasonably be interpreted as

romantic involvement with a patient

regardless of whether such involvement

occurs in the professional setting or

outside of it;

2. May reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. May reasonably be interpreted by the

patient as being sexual.

* * *

(7). A patient's consent to, initiation of,

or participation in sexual behavior or

involvement with a physician does not change

the nature of the statutory prohibition.

* * *

(9). Upon a finding that a physician has

committed unprofessional conduct by engaging

in sexual misconduct, the Board will impose

such discipline as the Board deems necessary

to protect the public. The sanctions

available to the Board are set forth in Rule

64B8-8.001, F.A.C., and include restriction

or limitation of the physician's practice,

revocation or suspension of the physician's

license.

23. Recognizing the previous statutory provisions and rule

that have been referred to, Count I accuses Respondent of

violating Section 456.063(1), Florida Statutes (2004), thereby

subjecting him to discipline in accordance with Section

456.072(1)(u), Florida Statutes (2004).

24. Section 456.063(1), Florida Statutes (2004), states:

Sexual misconduct in the practice of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient . . . or to induce or attempt to

induce such person to engage in, verbal or

physical sexual activity outside the scope

of the professional practice of such health

care profession. Sexual misconduct in the

practice of a health care profession is

prohibited.

25. Section 456.072(1)(u), Florida Statutes (2004),

states:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(u) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

26. Count I also refers to a violation of Section

458.331(1)(j), Florida Statutes (2004), which states:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

(j) Exercising influence within a patient-

physician relationship for purposes of

engaging a patient in sexual activity. A

patient shall be presumed to be incapable of

giving free, full, and informed consent to

sexual activity with his or her physician.

27. Count II to the Administrative Complaint refers to a

violation of Section 458.331(1)(t), Florida Statutes (2004), in

relation to the alleged sexual misconduct with Patient T.S.

That provision states:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

(t) . . . the failure to practice medicine

with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician

(physician assistant) as being acceptable

under similar conditions and circumstances.

28. The Department has failed in its proof to show a

violation of any statute or rule referred to in Count I and

Count II to the Administrative Complaint. The proof concerning

alleged misconduct was not clear and convincing.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered which dismisses the

Administrative Complaint.

DONE AND ENTERED this 11th day of August, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2006.

ENDNOTE

1/ On November 26, 2004, when Patient T.S. was seen by the

Respondent in the examining room with no one else present,

Patient T.S. testified that she was sitting on the examining

table, about to get up, sort of in a leaning position on the

table, when she was approached by Respondent. According to

Patient T.S., Respondent had written prescriptions for her and

as he was handing them to her, he gave her a hug "with

pressure", told her "I just love you" and kissed her on the

lips. All those actions were unexpected by Patient T.S., as she

explains. She felt they were unwarranted. As she described it,

she felt "violated." She felt "shocked." She felt that she

could no longer trust Respondent beyond that point with her

care. More specifically she describes the kiss as Respondent

pressing his lips firmly against hers, immediately before

exiting the examining room. Patient T.S. describes the hug as

"body to body contact." None of Respondent's actions, as

Patient T.S. describes them, were deemed necessary to her

treatment. In contrast, Respondent in his testimony denies any

inappropriate conduct with Patient T.S. Specifically, he denies

telling Patient T.S. "I just love you." He denies kissing

Patient T.S. on the lips. He denies initiating a full frontal

hug on Patient T.S. He admits to hugging patients at times,

those that are more familiar to him than Patient T.S. appeared

to be. He has no recollection of any form of hug given

Patient T.S. on the date in question, as compared to a full

frontal hug, which he denies all together. Respondent would

agree that a kiss and hug were not necessary to treat

Patient T.S. Other evidence was provided that would tend to

address the alleged incident both before and after its

occurrence, but there was no other eye-witness to the alleged

incident and no persuasive corroboration for either version of

the events, leaving the dispute unresolved, when recognizing the

stringent requirement that clear and convincing evidence be

presented before facts may be found that would support a

violation of the applicable statutes and rule.

COPIES FURNISHED :

April Dawn Skilling, Esquire

Carol L. Gregg, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802-2753

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 filed with the agency that

will issue the final order in this case.