15-000429PL Department Of Health, Board Of Medicine vs. Christina B. Paylan, M.D. Status: Closed Recommended Order on Friday, October 23, 2015.

Summary: Respondent was convicted of crimes related to the practice or ability to practice medicine. Recommend Board retain jurisdiction pending criminal appeals.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 15 - 0429PL

CHRISTINA B. PAYLAN, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Septe mber 1 and 2, 2015, a disputed fact hearing was held

in this case by video teleconferencing, with sites in Tampa and

Tallahassee, Florida, before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Pe titioner: Louise Wilhite - St Laurent, Esquire

Therese A. Savona, Chief Appellate Counsel

Kristen M. Summers, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Christina Paylan, M.D., pro se

Cosmetic Surgery of Tampa Bay

3801 South MacDill Avenue

Tampa, Florida 33611

STATEMENT OF THE ISSUE

The issue in this case is whether the RespondentÓs medical

license should be revoked or otherwise disciplined under section

456.072(1)(c), Florida Statutes, based on criminal convictions

related to th e practice of medicine or the RespondentÓs ability

to practice medicine Ï namely, convictions for obtaining a

controlled substance by fraud, a third degree felony under

section 893.13(7)(a)9., and for fraudulently using, or possessing

with intent to fraudule ntly use, personal identification

information, a third degree felony under section 817.568(2)(a). 1/

The Respondent disputes that the convictions are related to the

practice of medicine or her ability to practice medicine and

asserts various defenses.

PREL IMINARY STATEMENT

The Respondent requested a disputed fact hearing on the

Administrative Complaint, which was referred to DOAH. An Amended

Administrative Complaint filed on July 29, 2015, conformed the

factual allegations to the statutory violations.

At the hearing, Joint Exhibits 1 through 3 were admitted in

evidence. (Joint Exhibit 5 was to have been provided by the

Respondent, but it was not provided .) The Department of Health

(DOH) called one expert witness, Frank Stieg, M.D., and the

Petiti onerÓs Exhibits 1 through 9 were admitted in evidence. The

Respondent testif ied and called three witnesses: John Mudri,

Cynthia Demetrovich, and Melissa VanWagenen. The RespondentÓs

Exhibits 11, 12, 32, 33, 34A, 53, 61, 67 and 68 were admitted in

eviden ce. Ruling was reserved on objections to the RespondentÓs

Exhibits 7 and 59. The objections to Exhibit 7 (authenticity and

relevance to the charges in the Amended Administrative Complaint)

are sustained. 2/ DOHÓs objections to the RespondentÓs Exhibit 59 ,

the videotape and transcript of the Douglas Dedo deposition, were

deferred for consideration after the Respondent filed the

exhibit, but no exhibit was filed. 3/ The RespondentÓs post -

hearing request to add the transcript of Mark LoganÓs deposition

to th e evidence in the case, which DOH opposes, is denied.

A T ranscript of the final hearing was filed on September 24,

2015. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

FINDING S OF FA CT

1. The Respondent, Christina Paylan, M.D., holds a license,

ME 82839, to practice as a medical doctor in the State of

Florida, as regulated by DOH and the Board of Medicine.

2. On April 25, 2014, she was charged with obtaining or

attempting to obtain a controlled substance, Pethidine/Meperidine

(known by the brand name Demerol), by fraud, forgery, deception

or subterfuge in violation of section 893.13(7)(a)9., Florida

Statutes; and with fraudulently using the personal identification

information of a pa tient, C.M., without first obtaining the

patientÓs consent, in violation of section 817.568(2)(a), Florida

Statutes. The charged conduct was alleged to have occurred in

July 2011.

3. The Respondent was tried by jury in the circuit court in

Hillsborough County on July 29 and 30, 2014, and was found

guilty. On August 22, 2014, the Respondent was adjudicated

guilty and sentenced to 364 days in the county jail. The

Respondent appealed the convictions. T he appeal is pending.

4. DOH filed an Administrative Complaint based on the

criminal convictions and suspended the RespondentÓs license

pending the resolution of the Administrative Complaint.

5. The RespondentÓs convictions related to her practice of

medicine. She was convicted of fraudulently writing a

pr escription for Demerol for a patient, C.M., and using the

patientÓs personal identification information (driver license and

insurance card) without the patientÓs consent to present the

prescription to a pharmacy to be filled on July 1, 2011. The

Responden tÓs status as a medical doctor gave her the ability to

obtain the patientÓs personal identification information and

write the prescription. A medical license carries with it a high

level of public trust and requires good judgment, integrity, and

high mora ls. Licensure carries a duty to safeguard patientsÓ

personal information and use it only for legitimate purposes.

The Respondent was convicted of crimes that violate the public

trust, demonstrate warped judgment and a lack of integrity,

involve misuse of patient information, and undermine public

confidence in the RespondentÓs ability to practice medicine.

6. The Respondent maintained her innocence and essentially

sought to re - try the criminal c ase. Various rulings denied the

RespondentÓs efforts to do s o, including rulings that sustained

many of DOHÓs objections to the RespondentÓs proffered evidence.

7. The RespondentÓs convictions are on appeal. As

discussed in the Conclusions of Law, if the convictions are

overturned on appeal, there would be no bas is for disciplining

the RespondentÓs medical license based on the Amended

Administrative Complaint.

8. The RespondentÓs Answer to the Amended Administrative

Complaint denied that she (i.e., Christina Paylan, M.D.) was

convicted because a Ðfictitious Chris tina Paylan was found

guilty.Ñ By this, the Respondent meant the prosecutor in the

criminal trial Ðfraudulently represented that Respondent is

neither a doctor nor a licensed practitioner.Ñ In her Proposed

Recommended Order, the Respondent refined her arg ument to be that

her convictions were for crimes that apply only to laypersons,

not to medical doctors. These are grounds of her appeal from the

criminal convictions. The se defenses are invalid, as discussed

in the Conclusions of Law.

9. The Respondent asserted affirmative defenses of res

judicata, collateral estoppel, laches, and unclean hands based on

the actions taken by the Board of Medicine in this case and in

prior investigations of her practice of medicine.

10. One of those prior investigations, designated by DOH

file 11 - 0006, involved an investigation of whether the Respondent

met the standard of care with respect to patient L.B. This

investigation had nothing to do with the RespondentÓs conduct

regarding the patient C.M., which was the subject of the criminal

convictions giving rise to the Amended Administrative Complaint

in this case.

11. Another investigation, designated by DOH file 11 - 18577,

was opened to investigate allegations regarding the RespondentÓs

drug prescriptions, specifically fo r Demerol, for patients J.E.A.

and J.M.A. During the 11 - 0006 investigation, DOH obtained

patient records for patient C.M., which were removed from that

investigative file and added to investigation 11 - 18577. In May

2014, investigation 11 - 18577 was termin ated when the Board of

Medicine found no probable cause, dismissed the cases, and closed

the investigation. A primary basis of this decision was DOHÓs

inability to obtain the patient records of J.E.A. and J.M.A. and

their unwillingness to cooperate with a prosecution of the

Respondent. Although C.M.Ós patient records were available, and

C.M. may have been willing to cooperate with a prosecution of the

Respondent, the probable cause decision, dismissal of the cases,

and closure of the investigation include d C.M. as well as J.E.A.

and J.M.A.

12. There was no evidence to prove unclean hands on the

part of DOH or the Board of Medicine. This affirmative defense

was not mentioned in the RespondentÓs Proposed Recommended Order.

13. As explained in the Conclusi ons of Law, the

RespondentÓs affirmative defenses are not valid.

14. In the RespondentÓs Proposed R ecommended O rder, the

Respondent refined her defense of laches by arguing that she was

prejudiced by the action taken by the Board of Medicine in May

2014 b ecause it ÐeliminatedÑ her option to plead nolo contendere.

Clearly, the action of the Board of Medicine did not eliminate

the RespondentÓs options or force her to go to trial on th e

criminal charges. Even if the RespondentÓs decision to go to

trial had been influenced by the action of the Board of Medicine,

h er new defense of laches is also not valid, as discussed in the

Conclusions of Law.

15. Regarding the appropriate penalty, the Respondent has

been licensed and practicing medicine in Florida since J une 2001.

There was no evidence of any prior discipline being imposed

against the RespondentÓs medical license. The Amended

Administrative Complaint is based on criminal convictions arising

out of a single, isolated incident. Except for the conviction

f or a single misuse of a patientÓs personal identification

informa tion , there was no evidence of any exposure of a patient

or the public to any other injury or potenti al injury . The

RespondentÓs actions resulted in no pecuniary benefit or self -

gain.

CONCLU SIONS OF LAW

16. The Amended Administrative Complaint seeks to

discipline the Respondent under section 456.072(1)(c), Florida

Statutes, based on criminal convictions related to the practice

of medicine or the RespondentÓs ability to practice medicine Ï

name ly, convictions for obtaining a controlled substance by

fraud, a third degree felony under section 893.13(7)(a)9., and

for fraudulently using, or possessing with intent to fraudulently

use, personal identification information, a third degree felony

under s ection 817.568(2)(a).

17. Section 456.072(1)(c) provides that it is a ground for

discipline for a medical doctor to be convicted or found guilty

of, or enter a plea of guilty or nolo contendere to, regardless

of adjudication, a crime in any jurisdiction w hich relates to the

practice of, or the ability to practice, a licensee's profession.

18. DOH must prove the charges by clear and convincing

evidence. Dep't of Banking & Fin. v. Osborne Stern & Co. , 670

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

(Fla. 1987). The Supreme Court has stated:

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explic it and the witness must

be lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

19. The evidence was irrefutable that the Respondent was

convicted of obtaining a controlled substance by fraud, a third

degree felony under section 893.13(7)(a)9., and fraudulently

using, or possessing with intent to fraudulently use, personal

identification information, a third degree felony under section

817.568(2)(a).

20. Merriam - Webster defines the term ÐrelateÑ as Ðt o show

or make a connection between (two or more things).Ñ There was a

clear connection between the RespondentÓs practice of medicine

and her conviction.

21. Section 456.074(1)(a) indicates a clear relation

between the RespondentÓs convictions and the p ractice or ability

to practice medicine. It provides for the emergency suspension

of the license of certain health care practitioners, including

medical doctors, if the licensee is convicted (regardless of

adjudication) or found guilty of a felony under c hapter 817 or

893.

22. The Respondent attempted to refute the relationship of

her convictions to the practice or the ability to pr actice

medicine by requiring DOH to prove her culpability as a medical

doctor, versus as a laypers on, which amounted to an a ttempt to

re - try the criminal convictions. The premise for this argument

is rejected. DOH only was required to prove the criminal

convictions and their relation to the practice or ability to

practice medicine.

23. Prior to the RespondentÓs Proposed Rec ommended Order,

the Respondent argued that proof of culpability was required by

the decision in Spuza v. Department of Health , 838 So . 2d 676

(Fla. 2d DCA 2003). To the contrary, the holding in that case

was that the licensee was entitled to a hearing on the relation

of criminal convictions to the practice or ability to practice

medicine (as well as factual disputes relevant to the appropriate

penalty.) Id. at 677 - 78. In Spuza , DOH denied the licensee a

hearing; in this case, the Respondent had her heari ng.

24. The Respondent also argued that section 456.072(1)(c)

only applies to Ðmed ical crimes.Ñ She argues that section

893.13(7)(a)9. does not apply to m edical doctors, but only to

lay persons, because it begins with Ð[a] person may not,Ñ whereas

section 893.13(7)(b) begins with Ð[a] health care practitioner

. . . may not.Ñ The RespondentÓs argument is rejected. See

Cilento v. State , 377 So. 2d 663, 666 (Fla. 1979); State v.

Schultz , 120 So. 3d 222, 225 (Fla. 4th DCA 2013). Even if her

argument were co rrect, a crime need not be a ÐmedicalÑ crime to

be related to the practice or ability to practice medicine.

25. The evidence was clear and convincing, and virtually

irrefutable, that the RespondentÓs convictions related to the

practice or ability to prac tice her profession. See Rush v.

DepÓt of Bus. & ProfÓl Reg., Bd. of Podiatry , 448 So. 2d 26, 27 -

28 (Fla. 1st DCA 1984)(although not arising in an office setting,

crime of conspiracy to possess and import marijuana was a breach

of trust and related to the practice of podiatry, which included

dispensing drugs); Doll v. DepÓt of Health , 969 So. 2d 1103 (Fla.

1st DCA 2007)(a crime that demonstrated a Ðlack of honesty,

integrity, and judgmentÑ is related to the practice of

chiropractic medicine); DepÓt of Heal th, Bd. of Medicine v.

Algirdas Krisciunas, M.D. , Case No. 10 - 10229PL (Fla. DOAH

June 27, 2011; Fla. DOH Amended FO, Aug. 17, 2011)(five counts of

dispensing oxycodone and one count of conspiring to distribute

oxycodone were related to the practice of med icine, in part,

because the respondentÓs medical license was necessary to execute

the crime); DepÓt of Health, Bd. of Medicine v. Christopher

Carter, M.D. , Case No. 12 - 1575PL (Fla. DOAH Nov. 26,

2012)(ÐWhether or not a particular crime is related to a

prof ession is not limited to its connection to the technical

ability to practice the profession.Ñ).

26. The Respondent asserts affirmative defenses of res

judicata and collateral estoppel based on actions taken by DOH

and the Board of Medicine in investigati on 11 - 18577. Ð [ T ] he

principles of res judicata do not always neatly fit within the

scope of administrative proceedingsÑ and should be Ð applied with

Ò great caution Ó . Ñ Thomson v. DepÓt of Envtl. Reg. , 511 So. 2d

989, 991 (Fla. 1987). Res judicata preclude s the litigation of

the same claim between the same parties on the same cause of

action. Costello v. The Curtis Bldg. P'ship. , 864 So. 2d 1241,

1244 (Fla. 5th DCA 2004). For collateral estoppel to apply, the

issues must be identical and must be actually litigated.

Marquardt v. State , 156 So. 3d 464 , 481 (Fla. 2015). Discipline

in this case is based on criminal convictions. No previous

administrative action was based on criminal convictions. For

these reasons alone, neither res judicata nor collateral estoppel

apply in this case.

27. The Respondent also asserts the affirmative defense of

laches. Laches is inapplicable to administrative license

discipline proceedings without specific legislative authority.

See Farzad v. DepÓt of ProfÓl Reg., Bd. of Me d. , 443 So. 2d 373 ,

375 - 76 (Fla. 1st DCA 1983). There is no such legislative

authority in this case.

28. A party asserting laches must prove prejudice. See

Stephenson v. Stephenson , 52 So. 2d 684 (Fla. 1951); DepÓt of

Revenue By and on Behalf of Taylor v. David , 684 So. 2d 308 (Fla.

1st DCA 1996); DepÓt of Health and Rehab. Servs. v. Lemaster , 596

So. 2d 1117 (Fla. 2d DCA 1992). The Respondent claims prejudice

because the action taken by the Board of Medicine in May 2014

ÐeliminatedÑ her option to plea d nolo contendere and forced her

to go to trial on the criminal charges. Clearly, it did not. In

addition, since section 456.072(1)(c) is triggered by a nolo

contendere plea, it would have made no difference in this case if

the Respondent had pled nolo c ontendere to the criminal charges.

29. Section 456.072(2) authorizes discipline for

violations. Florida Administrative Code Rule 64B8 - 8.001 sets out

the applicable disciplinary guidelines. Section (2)(c) of the

rule provides for a range of penalties fr om probation to

revocation, with a fine of $1,000 to $10,000, and all penalties

in between, including appropriate con tinuing medical education,

for the violations proven in this case (assuming the RespondentÓs

convictions are not overturned on appeal.)

30 . Under rule 64B8 - 8.001(1), the purposes of discipline

are to punish an applicant or licensee for violations and deter

them from future violations; to offer opportunities for

rehabilitation, when appropriate; and to deter other applicants

or licensees fro m violations. Section (3) of the rule authorizes

the Board to deviate from the routine range of penalties upon

consideration of aggravating and mitigating factors listed (a)

through (i). Factor (a), the extent of exposure of a patient or

the public to in jury or potential injury, physical or otherwise,

should be characterized as slight. Factor (b), the Respondent's

legal status at the time of the offense (no restraints), is

neutral or mitigating. Factor (c), the number of counts or

separate offenses (two arising out of a single incident), is

neutral or slightly mitigating. Factor (d), the number of

previous identical offenses (none), is n eutral or mitigating.

Factor (e ), the Respondent's disciplinary history (none since

June 2001), is mitigating. Facto r (f), pecuniary benefit or

self - gain inuring to the Respondent (none), is neutral or

mitigating. Factor (g), involvement of controlled substances, is

aggravating. Factor (h), failure to keep and/or produce the

medical records in a standard of care viola tion case, is

inapplicable. Factor (i), any other relevant mitigating factors

(none), is inapplicable. Taking all the aggravating and

mitigating factors into consideration, the Board should not

deviate from the routine range of discipline. However, a pe nalty

in the middle of the range is appropriate. The maximum penalty

of revocation and a $10,000 fine, which is sought by DOH, is not

warranted or justified in this case .

31. Under section 456.072(4), the Board shall assess costs

related to the investig ation and prosecution, in addition to

other discipline imposed for violating the practice act.

32. The Board of Medicine should retain jurisdiction to

vacate all discipline if the RespondentÓs convictions are

overturned on appeal. See Rife v. Dep't of P rofÓl Reg. , 638

So. 2d 542 (Fla. 2d DCA 1994).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Medicine enter a final order:

finding the Respondent guilty as charged; fining her $5,00 0;

suspending her medical license for two years, with credit for the

time under emergen cy suspension; placing her on probation for on e

year after suspension; requiring her to take appropriate

continuing medical education; and assess ing costs related to the

investigation and prosecution. The final order should retain

jurisdiction to vacate all discipline if the RespondentÓs

convictions are overturned on appeal.

DONE AND ENTERED this 23rd day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of October , 2015 .

ENDNOTE S

1/ These criminal statutes are those in effect at the time of the

conduct charged Ï i.e., July 2011. Other substantive statutes and

rules cited are those in effect at the time of the RespondentÓs

criminal convictions in August 2014. Procedural statutes and

rules cited are those in effect currently.

2/ The ruling on the authenticity objection takes into account

the RespondentÓs Notification of Authentica tion for Phone Records

of Patient CM and Her Husband LM, filed on October 13, and DOHÓs

response filed on October 19, 2015.

3/ Appar ently, DOH has a copy of the T ranscript, since it was

cited in the PetitionerÓs Proposed Recommended Order. According

to DOH, the only relevant portions of the T ranscript would

support DOHÓs case.

COPIES FURNISHED:

Christina Paylan, M.D.

Cosmetic Surgery of Tampa Bay

3801 South MacDill Avenue

Tampa, Florida 33611

(eServed)

Louise Wilhite - St Laurent, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Therese A. Savona, Chief Appellate Counsel

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Kristen M. Summers, Esquire

Department of He alth

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Nichole Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, FL 32399

(eServed)

Andre O urso, Executive Director

Board of Medicine

Department of Health

Bin C - 0 3

4052 Bald Cypress Way

Tallahassee, FL 32399 - 3253

(eServed)

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.