08-002641PL Department Of Health, Board Of Medicine vs. Kayode Ezekiel Sotonwa, M.D. Status: Closed Recommended Order on Friday, September 25, 2009.

Summary: The evidence fails to establish that Respondent committed sexual misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 08-2641PL

)

KAYODE EZEKIEL SOTONWA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on

August 11 and 12, 2009, in St. Petersburg, Florida, before

William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Shirley L. Bates, Esquire

Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Kory J. Ickler, Esquire

Brian A. Newman, Esquire Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302-2095

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 28, 2008, the

Department of Health (Petitioner) alleged that Kayode Ezekiel

Sotonwa, M.D. (Respondent), committed sexual misconduct with

patients, thereby violating Subsections 456.063(1),

Florida Administrative Code Rule 64B8-9.008(2)(a). The

Respondent disputed the allegations and requested a formal

administrative hearing. By letter dated June 4, 2008, the

Petitioner forwarded the matter to the Division of

Administrative Hearings.

Pursuant to the Petitioner's Motion for Expedited Final

Hearing filed on June 6, 2008, the hearing was initially

scheduled for July 24 and 25, 2008. On July 14, 2008, the

Petitioner moved to place the case in abeyance, pending the

resolution of related legal proceedings. Without objection, the

case was placed in abeyance where it remained until May 27,

2009, when the parties filed a Joint Status Report requesting

that the hearing be rescheduled. By Notice of Hearing dated

May 29, 2009, the hearing was scheduled for August 11 and 12,

2009. The case was transferred to the undersigned

Administrative Law Judge on June 18, 2009.

At the hearing, the Petitioner presented the testimony of

four witnesses and had Exhibit 1 admitted into evidence. The

Respondent testified on his own behalf and presented the

testimony of three additional witnesses. Joint Exhibits 1

through 3 were admitted into evidence.

The Transcript of the hearing was filed on August 27, 2009.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. The Petitioner is the state department charged with

regulating the practice of medicine pursuant to Section 20.43

and Chapters 456 and 458, Florida Statutes (2006).

2. At all times material to this case, the Respondent was

a physician licensed by the State of Florida, holding license

number ME 90545, and certified by the American Board of Internal

Medicine.

3. Beginning in 2005, the Respondent owned, and practiced

medicine at, the Jude Medical Clinic, 2700 East Bay Drive,

Largo, Florida. His wife worked at the clinic as the office

manager.

4. The patients specifically referenced herein were

clients of Pinellas County Health Services (CHS), an agency that

provided access to medical care for low-income residents. CHS

apparently paid for some, but not all, medical services and

tests. CHS clients selected primary care physicians from a

referral list maintained by CHS. The Respondent was a primary

care physician who participated in the referral program and

accepted CHS clients as patients.

5. Prior to opening the clinic, the Respondent practiced

medicine at the Bay Pines VA Medical Center (Bay Pines) in

St. Petersburg, Florida, and, for a period of time, he continued

to practice at both. The Respondent employed a female nurse at

the clinic, with whom he also worked at Bay Pines.

6. Routine practice at Bay Pines required a female to be

present in the exam room when a male physician performed a

medical exam on a female patient.

7. The Respondent adopted the same practice for the

clinic's female patients. Clinic patients were escorted into an

exam room by either the nurse or the Respondent's wife. The

other female would leave the room to address other

responsibilities while the Respondent conducted the medical

history interview, recording the information in his notes. The

nurse generally recorded the patient's vital signs prior to the

interview, although the Respondent did so when the nurse was

absent from work. After the interview was completed, the nurse

or the Respondent's wife would enter the room and remain during

the physical exam.

Patient J.R.

8. On August 9, 2007, Patient J.R. presented to the

Respondent's office for her initial visit with complaints of

neck and back pain.

9. The Respondent interviewed Patient J.R. and conducted a

complete medical exam on August 9, 2007. There was no evidence

that the exam was unwarranted. The interview and exam were

documented by medical records admitted into evidence at the

hearing. The exam included a breast exam. The medical records

document the size and location of a lesion on her left breast.

There was no evidence that the medical records were not created

contemporaneously with the physical exam of the patient.

10. Prior to the exam, the clinic's nurse escorted the

patient into the exam room and recorded vital signs. The

clinic's nurse was present in the room during the exam.

11. At one point during the exam, the Respondent's wife

also entered the exam room.

12. After completing the physical exam, the Respondent

ordered an MRI to address the patient's complaint of pain and

ordered lab tests for the patient. He gave the patient a

prescription for medication, which the patient filled. He also

scheduled a follow-up appointment, which the patient did not

keep.

13. At the time of the initial visit, the patient was

taking a significant amount of medication for chronic pain, and

she requested that the Respondent provide a prescription for

pain medication. He declined to comply with her request.

14. Patient J.R. testified at the hearing that the

Respondent fondled her breasts for approximately 15 minutes with

no one else present in the exam room at the time. She also

testified that the Respondent performed no physical exam during

the office visit. The patient's testimony was contrary to the

greater weight of the evidence and has not been credited.

Patient W.S.

15. On October 15, 2007, Patient W.S. presented to the

Respondent's office for her initial visit with complaints of

back and leg pain. The patient also suffered from Crohn's

Disease and had burns to the skin on the backs of her thighs.

She attributed the burns to use of a heating pad. The patient

was taking various prescription medications, including pain

relievers, at the time of the office visit.

16. The Respondent interviewed Patient W.S. and conducted

a complete medical exam, including a neurological exam, on

October 15, 2007. There was no evidence that the exam was

unwarranted or otherwise inappropriate. The interview and exam

were documented by medical records admitted into evidence at the

hearing. There was no evidence that the medical records were

not created contemporaneously with the physical exam of the

patient.

17. Because the clinic's nurse was absent on October 15,

the Respondent's wife entered the room at the time of the

physical exam and was present throughout the exam. The

Respondent took the patient's vital signs. Upon the conclusion

of the exam, the Respondent left the room prior to both the

patient and his wife.

18. After completing the physical exam, the Respondent

ordered an MRI to address the patient's complaint of pain and

ordered lab tests for the patient. He gave the patient a

prescription for antibiotic medication for the burns to her

thighs and a prescription for a muscle relaxant to address her

pain. He also referred her to a gastroenterologist for

treatment of the Crohn's Disease.

19. The patient completed the MRI test and filled the

medication prescriptions. She also saw a gastroenterologist for

her Crohn's Disease, although not the one to whom she was

referred by the Respondent.

20. At the hearing, Patient W.S. testified that the

Respondent examined her spine by rubbing his hand down her back,

during which she emitted a sound of pain, and that the

Respondent said, "Don't do that, it makes me think you are

horny." She also testified that the Respondent used excessive

force when striking her knees with a reflex instrument and said

"See what happens when you piss your doctor off." The testimony

was not supported by the greater weight of the evidence, and it

has not been credited.

21. Allegations related to improper use of a "business or

index card" during a neurological exam were withdrawn prior to

the hearing.

Patient E.S.

22. On February 25, 2008, Patient E.S. presented to the

Respondent's office for a follow-up to an initial visit on

January 16, 2008.

23. Upon arriving at the clinic for the follow-up, she

complained of chest pain and "heaviness" and was immediately

taken to an exam room by the nurse.

24. The nurse took the patient's vital signs and retrieved

an EKG machine. The nurse placed the EKG machine leads on the

patient's chest and performed the test. The test results were

within normal limits.

25. The Respondent was not present in the room at the time

of the EKG test. After completing the test, the nurse located

the Respondent in his office and reported the information to

him, and both the nurse and the Respondent went to the exam

room. The Respondent advised the patient that the EKG test was

normal.

26. The Respondent then discussed the results of lab tests

that had been performed after the January appointment. The

patient's tests results reported the presence of a urinary tract

infection (UTI) and specified that the identified bacteria "may

represent colonizers from external and internal genitalia."

27. Based upon the reported source of the bacteria

identified as responsible for the UTI, the Respondent discussed

sanitary cleansing practices with the patient during the exam.

28. At the conclusion of the appointment, the Respondent

referred the patient for cardiac stress testing, prescribed an

antibiotic for the UTI, and ordered additional lab tests. The

Respondent left the exam room prior to both the patient and the

nurse. The nurse removed the EKG leads from the patient's

chest.

29. The patient filled the prescription and went to the

lab as directed by the Respondent.

30. The patient's office visit on February 25, 2008, was

documented by medical records admitted into evidence at the

hearing. There was no evidence that the medical records were

not created contemporaneously with the physical exam of the

patient. There was no evidence that the Respondent's

interaction with Patient E.S. was inappropriate or unwarranted

based upon the information available to the Respondent from test

results or obtained during the patient's initial clinic

appointment.

31. At the hearing, Patient E.S. testified that the

Respondent performed the EKG and that no one else was present at

the time. The testimony was contrary to the greater weight of

the evidence and has not been credited.

32. Patient E.S. testified that after telling her about

the UTI, he told her to "lay off the sex." There was no

credible evidence presented that providing such advice to a

patient with an active UTI was improper or constituted sexual

misconduct.

33. Patient E.S. also testified that the Respondent pulled

down her underwear, and, using an ungloved finger, touched her

clitoris and inserted his finger into her vagina, while

identifying each. The testimony was contrary to the greater

weight of the evidence and has not been credited.

34. The Administrative Complaint alleged that, at the time

of the initial visit, the Respondent told the patient she needed

a pap smear test and that one could be provided for her payment

of $50 "under the table." At the hearing, the Respondent denied

making the statement, but testified without contradiction that

the CHS did not pay for pap smear tests and that patients were

required to pay the expense of the test. There was no evidence

that such a statement, even assuming it were made, constituted

sexual misconduct.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

36. The Respondent is the state agency charged with

regulating the practice of medicine. § 20.43 and Chapters 456

and 458, Fla. Stat. (2006).

37. Subsection 456.063(1), Florida Statutes (2006),

provides as follows:

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 client, or an immediate

family member, guardian, or representative

of the patient or client in, 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.

38. Subsection 456.072(1)(v), Florida Statutes (2006),

provides as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(v) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

39. Subsection 458.331(1)(j), Florida Statutes (2006),

provides as follows:

The following acts constitute grounds for

denial of a license or 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.

40. Florida Administrative Code Rule 64B8-9.008(2)(a)

provides as follows:

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but it 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.

41. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence is that which is credible,

precise, explicit, and lacking confusion as to the facts at

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact the firm belief of conviction,

without hesitancy, as to the truth of the allegations.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

In this case, the burden has not been met.

42. The Administrative Complaint alleged that the

Respondent violated the statutes referenced herein by "fondling

Patient J.R.'s breasts and/or her nipples for approximately

fifteen minutes despite the patient being at the Respondent's

office only for an MRI referral, and/or by looking at her in a

sexual manner while doing so." The evidence was insufficient to

establish that the Respondent "fondled" the patient's breast

and/or nipples for "approximately fifteen minutes."

43. Further, there was no evidence that the Respondent's

medical exams were inappropriate. Subsection 458.305(3),

Florida Statutes (2006), defines the "practice of medicine" as

"the diagnosis, treatment, operation, or prescription for any

human disease, pain, injury, deformity, or other physical or

mental condition." There was no evidence that the Respondent

acted inappropriately in performing a breast exam of

Patient J.R. "despite the patient being at the Respondent's

office only for an MRI referral" prior to determining a

diagnosis and appropriate course of treatment.

44. As to Patient W.S., the Administrative Complaint

alleged that the Respondent violated the statutes referenced

herein as follows:

By rubbing his hand down the spine of

Patient W.S.'s back and saying "Don't do

that, it makes me think you are horny,"

after the patient made an audible sound of

pain; and/or by taking what appeared to be a

business or index card and rubbing both of

Patient W.S.'s inner thighs with it,

approaching her vaginal area, and/or by

telling Patient W.S. he wanted her to remove

her clothes so that he could examine the

area around her anus with the same card;

and/or by becoming angry and/or upset after

Patient W.S. declined to undress for an anal

exam and by stating, "See what happens when

you piss your doctor off?" and then abruptly

ending the exam and leaving the room.

45. The evidence was insufficient to establish that the

Respondent made the statements alleged in the complaint.

46. The allegations related to the inappropriate use of a

business or index card were withdrawn by the Petitioner prior to

the hearing.

47. The evidence was insufficient to establish that the

Respondent left the room and terminated the exam in anger or

irritation at the patient.

48. As to Patient E.S., the Administrative Complaint

alleged that the Respondent violated the statutes referenced

herein as follows:

By telling Patient E.S. that she needed a

pap smear and that he could provide one for

$50 dollars "under the table," when Patient

E.S. presented to the Respondent on or about

February 4, 2008, for a check up for

menopause, with specific complaints of

heaviness in her chest, recent pneumonia,

the need for a lung x-ray, and to provide

blood and urine samples for testing; and/or

by telling Patient E.S. to "lay off the

sex," after telling her she had a urinary

tract infection; and/or by pulling Patient

E.S.'s panties down, placing an ungloved

finger on Patient E.S.'s clitoris and

telling her "this is your clit," and then

inserting his ungloved finger into her

vagina and saying, "this is your vagina."

49. There was no credible evidence that the allegations

related to the cost of a pap smear test constitute sexual

misconduct. There was no evidence that such a statement was

inappropriate in any manner.

50. The evidence failed to establish that the Respondent's

discussion with the patient related to the UTI constituted

"sexual misconduct" or was otherwise inappropriate. There was

no credible evidence that he touched her internal or external

genitalia with an ungloved finger.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

final order dismissing the Administrative Complaint filed

against Kayode Ezekiel Sotonwa, M.D.

DONE AND ENTERED this 25th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 2009.

COPIES FURNISHED :

Shirley L. Bates, Esquire

Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Kory J. Ickler, Esquire

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302-2095

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

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.