09-002854PL Department Of Health, Board Of Psychology vs. Patrick Gorman, Psy.D. Status: Closed Recommended Order on Friday, December 11, 2009.

Summary: Erroneous diagnosis warrants discipline. The records failed to meet standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PSYCHOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 09-2854PL

)

PATRICK GORMAN, PSY.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held by

video teleconference on August 18, 2009, in Tallahassee and

Orlando, Florida, before William F. Quattlebaum, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: James B. Meyer, Esquire

111 West Bloxham Street

Tallahassee, Florida 32301-2308

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 February 24, 2009, the

Department of Health (Petitioner) alleged that Patrick Gorman,

Psy.D. (Respondent), violated Subsection 490.009(1)(r), Florida

Statutes (2007), and, by violating Florida Administrative Code

Rule 64B-19.0025(1), also violated Subsection 490.009(1)(w),

Florida Statutes (2007). 1 The Respondent disputed the

allegations and requested a formal administrative hearing. By

letter dated May 22, 2009, the Petitioner forwarded the matter

to the Division of Administrative Hearings.

The hearing was initially scheduled to commence on July 30,

2009; was continued at the request of the parties; and was

subsequently scheduled for August 18, 2009. The hearing was

transferred to the undersigned Administrative Law Judge on

August 5, 2009.

On August 4, 2009, the parties filed a Joint Pre-hearing

Stipulation, including a statement of facts that have been

incorporated herein as necessary.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1 through 8 admitted

into evidence. The Respondent testified on his own behalf,

presented the testimony of one additional witness, and had

Exhibits numbered 1 through 5 admitted into evidence.

The three-volume Transcript of the hearing was filed on

October 5, 2009. The Respondent filed a Proposed Recommended

Order on October 21, 2009. The Petitioner filed a Proposed

Recommended Order on October 26, 2009.

On November 10, 2009, the Respondent filed Exceptions to

the Petitioner's Proposed Recommended Order, and the Petitioner

filed a Motion to Strike the Respondent's Exceptions and for

Sanctions. On November 16, 2009, the Respondent filed a Motion

to Withdraw Exceptions. Upon review of the motions, it is

hereby ordered that the Petitioner's Motion to Strike and for

Sanctions is denied, and the Respondent's Motion to Withdraw

Exceptions is granted.

FINDINGS OF FACT

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

licensed as a psychologist by the State of Florida, Department

of Health, Board of Psychology, license number PY 4151, with an

address of record at 1870 Aloma Avenue, No. 280, Winter Park,

Florida 32789.

2. On September 3, 2006, patient R.F., then a 29-year-old

female, arrived at the emergency room (ER) of Winter Park

Memorial Hospital (WPMH), with symptoms of severe abdominal

pain. She was measured as 66" tall and 97.5 pounds. She

required a blood transfusion shortly after her arrival at the ER

and was admitted to WPMH with a diagnosis of anorexia and

anemia.

3. The patient's hospitalization followed several months

of digestive illness and weight loss. Despite receiving medical

care from a family practitioner, there was no apparent diagnosis

of the illness prior to her admission to WPMH on September 3,

2006.

4. On September 5, 2006, the Respondent received a

consultation referral for the patient from her attending

physician at WPMH. At the time of the request, hospital staff

had been unable to determine a cause for her weight loss and

medical condition.

5. On September 6, 2006, the Respondent met with and

interviewed the patient in her room at WPMH. During his

interview, he asked questions related to memory, eating habits,

body image, and depression.

6. As part of his consultation with the patient, the

Respondent provided three screening tests to her: the Beck

Anxiety Inventory (BAI), the Beck Depression Inventory (BDI) and

the Eating Disorder Diagnostic Scale (EDDS).

7. While the patient completed the tests, the Respondent

left her hospital room and went to talk with the nursing staff.

8. The nurses notes in the patient's file reported an

episode of vomiting by the patient during her admission. At the

hearing, the patient acknowledged one episode of vomiting at the

hospital. There was no evidence that the vomiting incident was

a symptom of an eating disorder or an attempt by the patient to

"purge."

9. The nurse’s notes also indicated that the patient's

husband had exhibited anger during a hospital visit with the

patient, suggesting that there was conflict between the patient

and her husband.

10. The Respondent confirmed the information in the

nursing notes during his conversation with the nursing staff.

11. The Respondent also discussed the patient with her

attending physician at WPMH, who acknowledged that no medical

explanation for the weight loss had been identified.

12. After completing his discussions with the nursing and

medical staff, the Respondent returned to the patient and

assisted her in completing the tests.

13. The Respondent made no attempt to contact the

Respondent's family practitioner to obtain medical history or

any other information relevant to her symptoms.

14. Believing that discussing the situation with the

patient's husband would be unproductive, the Respondent made no

attempt to talk with the husband. He also made no attempt to

talk to any other member of the patient's family.

15. Following his review of her responses, the Respondent

offered a "working" diagnosis of anorexia, depression (NOS), and

anxiety disorder (NOS).

16. The Respondent's diagnosis appears to be based, at

least in part, on the fact that no other cause for the patient's

deteriorated medical condition had been identified at the time

he conducted his evaluation.

17. The evaluation of the patient performed by the

Respondent at WPMH was insufficient to establish a clinical

diagnosis of anorexia.

18. The DSM-IV-TR criteria for establishing a diagnosis of

anorexia nervosa include: (a) body weight less than 85 percent

of expected, (b) intense fear of gaining weight or with becoming

overweight even when underweight, (c) body image distortion

and/or related distorted beliefs, and (d) amenorrhea or the

absence of at least three consecutive menstrual cycles.

19. There was no credible evidence that the patient

exhibited either the second or third criteria for diagnosis of

anorexia nervosa at the time of the diagnosis.

20. There was no evidence that the patient exhibited an

intense fear of gaining weight or with becoming overweight. To

the contrary, the patient clearly expressed concern about her

weight loss and her physical condition.

21. There was no evidence that the patient exhibited body

image distortion. The patient was aware of her weight loss.

Although there was some dispute regarding the extent of weight

loss preceding the admission to WPMH, with the patient

estimating at 20-to-25 pounds and the mother-in-law estimating

as much as 50 pounds, the Respondent had no discussion with the

mother-in-law prior to rendering his diagnosis, and there was no

indication that the patient's self-report was incorrect.

22. Additionally, although the patient's responses to the

screening tools were indicative of elevated anxiety, the

responses were insufficient to distinguish between anxiety

related to symptoms of physical disease and anxiety resulting

from psychological illness.

23. The BAI is useful as a screening measure for the

severity of anxiety in adults and evaluates physiological and

cognitive symptoms of anxiety. The patient's scores on the BAI

suggested the presence of anxiety potentially related to

physical illness.

24. The patient's score on the BDI were suggestive of

depression potentially related to a physical condition.

25. The EDDS is a brief self-reporting tool for screening

anorexia nervosa, bulimia nervosa, and binge-eating disorder,

but is not regarded as a diagnostic instrument.

26. The Eating Disorder Examination (EDE), a semi-

structured interview, was developed to assess the specific

psychopathology of anorexia nervosa and bulimia nervosa. The

Respondent did not administer an EDE to the patient.

27. Based on the patient's responses to the screening

tests, the Respondent should have continued his evaluation of

the patient to confirm his working diagnosis; however, after

rendering his working diagnosis, the Respondent conducted no

further review and had no intentions of doing so. At the

conclusion of his evaluation on September 6, 2007, the

Respondent did not anticipate any further interaction with the

patient.

28. Although the Respondent's notes indicate that he

performed the evaluation, including testing, the records lack

detail sufficient to document the Respondent's inquiry and any

analysis resulting in his diagnosis.

29. There is no narrative or textual documentation of any

discussion between the Respondent and the patient as to the

patient's medical history.

30. The Respondent's records fail to reflect any

discussion related to the patient's self-image and food other

than a score on the EDDS instrument.

31. There is no documentation within the Respondent's

records of any discussion related to the use of laxatives other

than a score on the EDDS instrument.

32. Although at the hearing, the Respondent opined that

the patient was unable to verbalize emotions (alexithymia), the

Respondent's records do not document the finding.

33. The Petitioner has asserted that the entire

consultation was completed in an hour and 15 minutes and that

the patient interview period was not long enough.

34. The Respondent asserted that, due to the type of

referral received, he was required by hospital policy to

complete his assessment within a 24-hour period.

35. The Respondent also asserted that the patient's

medical condition did not permit an extended consultation at

WPMH on September 6, 2006.

36. The evidence failed to establish that either hospital

policy or the patient's condition precluded the Respondent from

conducting additional interviews or tests to confirm his

diagnosis.

37. The Respondent communicated his diagnosis to the

patient on September 6, 2006, and recommended admission on a

voluntary basis into an eating disorder clinic for further

evaluation and treatment after discharge from the hospital. The

Respondent believed that the patient concurred with his

recommendation on that date, and he immediately contacted the

hospital case managers to begin the process of arranging her

admission to the eating disorder clinic.

38. At the hearing, the patient testified that she did not

believe she had an eating disorder or any psychological issue

related to her hospitalization at WPMH and that she did not

agree with the Respondent's recommendation that she voluntarily

enter an eating disorder clinic after discharge.

39. On September 7, 2006, the Respondent was advised by an

urgent telephone call from a WPMH nurse that the patient was

attempting to leave the hospital against the advice of her

physicians. At the request of the nurse, the Respondent

returned to WPMH and met with the patient and her mother-in-law.

40. The mother-in-law was dissatisfied with the hospital's

failure to determine a medical cause for the patient's illness.

41. The mother-in-law believed that the WPMH staff was

intent on discharging the patient to an eating disorder clinic

and was refusing to perform additional diagnostic testing.

42. The mother-in-law had discussed the matter with the

family physician and was convinced that leaving the hospital and

proceeding through the family physician would result in

additional testing. Accordingly, the mother-in-law was

encouraging the patient to leave the hospital.

43. The Respondent discussed the situation with the

attending physician and received confirmation that no further

medical tests were planned.

44. After talking to the attending physician, the

Respondent attempted to convince the patient and her mother-in-

law that potentially serious medical risks were presented by

removing the patient from the hospital at that time. Based on

the patient's condition at the time of her arrival to the ER,

the Respondent's concern was reasonable.

45. After failing to convince the patient and her mother-

in-law that the patient's health was at risk, the Respondent

determined that the patient met statutory criteria for an

involuntary "Baker Act" commitment to the hospital.

46. The Respondent believed that the patient was leaving

the hospital against medical advice, that the patient would not

stay in the hospital voluntarily, that the patient was not able

to care for herself, and that no appropriate caretaker was

available.

47. At the hearing, the patient testified that she was

willing to remain at the hospital for further medical testing;

however, the evidence suggests that, because no further medical

tests were planned, the patient was in the process of leaving

WPMH against medical advice.

48. Based on the patient's condition upon her arrival at

the ER and the fact that no medical cause or treatment had been

identified for her illness, it is reasonable to presume that she

was incapable of caring for herself on September 7, 2006.

49. Although the mother-in-law was insistent that she

could care for the patient in her home, it is unlikely that

adequate care outside a medical setting was available to the

patient at that time, given the condition of the patient upon

her admission to the ER.

50. The Respondent implemented the Baker Act commitment

with the agreement of the patient's attending physician. The

Respondent informed the patient and her mother-in-law of the

action, and then the Respondent left the hospital.

51. On September 9, 2006, the patient was administered a

colonoscopy at WPMH and was subsequently diagnosed with Crohn's

disease, a condition for which medical treatment was available.

52. On September 12, 2006, the Respondent had a follow-up

consultation with the patient at WPMH. The Baker Act commitment

was not renewed.

53. On September 14, 2006, the patient was discharged from

WPMH.

54. After the discharge, the patient continued to receive

medical treatment for Crohn's disease, and her health began to

improve, including reduction of symptoms and appropriate weight

gain.

CONCLUSIONS OF LAW

55. 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).

56. The Petitioner is the state agency charged with

regulating the practice of psychology. § 20.43 and Chapters 456

and 490, Fla. Stat. (2006).

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

convincing evidence the allegations against the Respondent set

forth in the Administrative Complaint. 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).

58. 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).

59. Section 490.009, Florida Statutes (2006), provides, in

relevant part, as follows:

490.009 Discipline.--

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(r) Failing to meet the minimum standards

of performance in professional activities

when measured against generally prevailing

peer performance, including the undertaking

of activities for which the licensee is not

qualified by training or experience.

* * *

(w) Violating any provision of this chapter

or chapter 456, or any rules adopted

pursuant thereto.

60. The evidence establishes that the Respondent violated

Subsection 490.009(1)(r), Florida Statutes (2006), by conducting

an inadequate psychological evaluation of the patient and

rendering an erroneous diagnosis of anorexia nervosa.

61. Florida Administrative Code Rule 64B19-19.0025

provides as follows:

64B19-19.0025 Standards for Records.

To serve and protect users of psychological

services, psychologists’ records must meet

minimum requirements for chronicling and

documenting the services performed by the

psychologist, documenting informed consent

and recording financial transactions.

(1) Records for chronicling and documenting

psychologists’ services must include the

following: basic identification data such

as name, address, telephone number, age and

sex; presenting symptoms or requests for

services; dates of service and types of

services provided. Additionally, as

applicable, these records must include:

test data (previous and current); history

including relevant medical data and

medication, especially current; what

transpired during the service sessions;

significant actions by the psychologist,

service user, and service payer;

psychologist’s indications suggesting

possible sensitive matters like threats;

progress notes; copies of correspondence

related to assessment or services provided;

and notes concerning relevant psychologist’s

conversation with persons significant to the

service user.

(2) Written informed consent must be

obtained concerning all aspects of services

including assessment and therapy.

(3) A provisionally licensed psychologist

must include on the informed consent form

the fact that the provisional licensee is

working under the supervision of a licensed

psychologist as required by Section

490.0051, F.S. The informed consent form

must identify the supervising psychologist.

(4) Records shall also contain data

relating to financial transactions between

the psychologist and service user, including

fees assessed and collected.

(5) Entries in the records must be made

within ten (10) days following each

consultation or rendition of service.

Entries that are made after the date of

service should indicate the date the entries

are made, as well as the date of service.

62. The evidence establishes that by violating Florida

Administrative Code Rule 64B-19.0025(1), the Respondent also

violated Subsection 490.009(1)(w), Florida Statutes (2006). The

Respondent's documentation of his consultation with the patient

failed to meet the minimal standards for recordkeeping

applicable to this case.

63. Florida Administrative Code Rule 64B19-17.002 sets

forth relevant disciplinary guidelines. The penalty for

violations of Subsections 490.009(1)(r) and 490.009(1)(w),

Florida Statutes, is the same, ranging from a reprimand and

$1,000 fine to revocation and a fine up to $10,000.

64. Florida Administrative Code Rule 64B19-17.002(2)

provides as follows:

Based upon consideration of aggravating and

mitigating factors present in an individual

case, the Board may deviate from the

penalties recommended above. The Board

shall consider as aggravating or mitigating

circumstances the following:

(a) The danger to the public;

(b) The length of time since the date of

violation;

(c) The number of complaints filed against

the licensee;

(d) The length of time the licensee has

practiced without complaint or violations;

(e) The actual damage, physical or

otherwise, to the patient;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee’s livelihood;

(h) Any efforts the licensee has made

toward rehabilitation;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by the licensee to correct or

stop violations or refusal by the licensee

to correct or stop violations;

(k) Related violations found against the

licensee in another state including findings

of guilt or innocence, penalties imposed and

penalties served;

(l) Any other mitigating or aggravating

circumstances that are particular to that

licensee or to the situation so long as the

aggravating or mitigating circumstances are

articulated in the Board’s final order.

65. There have been no prior disciplinary actions taken

against the Respondent.

66. Although the patient was clearly displeased by having

been the subject of an involuntary commitment, the fact remains

that the patient was in the process of leaving the hospital

against the advice of physicians and that a test performed

during the period of her commitment resulted in an apparently

accurate diagnosis of the illness. Accordingly, the patient

suffered no actual harm by the actions of the Respondent or his

misdiagnosis of her illness.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

final order finding Patrick Gorman, Psy.D., in violation of

Subsections 490.009(1)(r) and 490.009 (1)(w), Florida Statutes

(2006), and imposing a penalty as follows: a reprimand and an

administrative fine of $1,000.

DONE AND ENTERED this 11th day of December, 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 11th day of December, 2009.

ENDNOTE

1/ The Administrative Complaint filed by the Petitioner against

the Respondent alleged that the events set forth herein occurred

in 2007 and cited Florida Statutes (2007) as the basis for the

disciplinary action. The Respondent's Response to the

Administrative Complaint specifically stated that there was no

dispute as to the dates alleged within the complaint. However,

in the Joint Pre-hearing Stipulation, the parties stated that

the events occurred in 2006. At the commencement of the

hearing, the Administrative Law Judge granted the Petitioner's

Motion for Official Recognition of the relevant portions of the

2006 Florida Statutes.

COPIES FURNISHED :

Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

James B. Meyer, Esquire

111 West Bloxham Street

Tallahassee, Florida 32301-2308

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Susie K. Love, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C-05

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.