00-004224PL Department Of Health, Board Of Medicine vs. Dejene Abebe, M.D. Status: Closed Recommended Order on Friday, February 7, 2003.

Summary: Petitioner failed to prove by preponderant evidence that alleged sexual misconduct with patient occurred. Various evidential facts showed Respondent`s testimony and evidence more credible.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 00 - 4224PL

)

DEJENE ABEBE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice th is cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings, on September 3 and

4, 2002, in Tallahassee, Florida. The appearances were as

follows:

APPEARANCES

For Pe titioner: Kim M. Kluck, Esquire

Department of Health

1052 Bald Cypress Way, Bin #C - 65

Tallahassee, Florida 32399

For Respondent: Stephen R. Andrews, Esquire

Andrews & Walker

822 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether

the Responden t has violated Section 458.331(1)(j) and (x),

Florida Statutes, and, if so, what if any penalty should be

imposed.

PRELIMINARY STATEMENT

This cause arose upon the filing of an administrative

complaint by the State of Florida, Department of Health agains t

the Respondent, Dejene Abebe, M.D., (Respondent), on October 12,

2000, alleging violations of Section 458.331(1)(j) and (x),

Florida Statutes. Specifically it is alleged that the

Respondent exercised influence within a patient - physician

relationship for the purpose of engaging the patient in sexual

activity and for violating a provision of Chapter 458, Florida

Statutes, and a rule or a lawful order of the board or the

department, previously entered in a disciplinary proceeding.

On October 12, 2000, the Respondent filed a request for

formal proceeding and the case was forwarded to the Division of

Administrative Hearings and ultimately the undersigned

administrative law judge.

The parties filed a joint, pre - hearing stipulation on

August 30, 200 2, and the cause came on for hearing as noticed on

the above dates. The Petitioner adduced the testimony of three

witnesses and the Respondent called two witnesses including the

Respondent himself. The parties introduced six joint Exhibits,

by stipulatio n, which were received into evidence. Joint

Exhibits one through five, consisting of various medical records

of B.R. and Joint Exhibit six consisting of certain cellular

phone records. The Petitioner introduced Petitioner's Exhibits

one and two and the R espondent also introduced Respondent's

Exhibits two, three, and four into evidence. Prior to

concluding the hearing the parties agreed to take additional

depositions and have a disputed prescription subjected to

handwriting analysis after the hearing, bef ore the record would

be closed. Subsequently, the parties stipulated to the

cancellation of additional depositions and the Petitioner's

Exhibit three, a prescription, was withdrawn and the proposed

hand writing analysis with regard thereto was cancelled. By

Order of November 22, 2002, the record was closed. Thereafter

proposed recommended orders were timely filed on or before

December 5, 2002, after submission of the transcript which was

filed on September 30, 2002. Those proposed recommended orders

hav e been considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida

charged with regulating the practice of medicine pursuant to

Chapter 458, Florida Statutes, including conducting dis ciplinary

proceedings for alleged violations of the provisions of the

Chapter. The Respondent is a licensed physician in the State of

Florida, holding license number ME0072783.

2. The Respondent is a native of Ethiopia, where he was

reared and educ ated. During the Ethiopian revolution he was

drafted into the Ethiopian military and served as a lieutenant

in combat for approximately two years. When a communist -

dominated regime seized power in the country the Respondent was

forced to flee, ultimately securing a scholarship to study

medicine in Yugoslavia. He attended and completed medical

school in that country, but had his passport revoked when he

refused to join the communist party in Yugoslavia. Ultimately

he fled that country and secured politic al asylum in the United

States. He worked at a number of jobs, including as a security

guard, for some years before he was able to take the Foreign

Medical Graduate's Examination of Medical Science. He passed

that examination in 1988 and attended the Har vard Medical School

in the Department of Psychiatry in Boston. Thereafter, upon

completing internship and residency training, he ultimately

located in Tallahassee, Florida, in 1997 and became licensed in

the State of Florida. The Respondent testified tha t he has,

from time to time used, his personal history of adversity to

help his patients by illustrating to them that, no matter what

difficulties they experience, that they can, by persistence,

overcome any adverse circumstance. He does this in an attemp t

to motivate his patients to get better.

3. The Respondent has more than, 1000 patients in his

practice and specializes in the treatment of children in the

context of psychopharmacology. He does not practice

psychotherapy. He has never before had a complaint filed

against him by the Board of Medicine.

4. In February of 1999, the Respondent and Dr. Thu Thai

agreed to form a partnership whereby they would share overhead

and make referrals to each other. Specifically, the Respondent

and Dr. Th ai agreed that the Respondent would refer all of his

adult patients to Dr. Thai and that Dr. Thai would refer child

patients to the Respondent. Before that arrangement could

become effective, however, Dr. Thai had to establish himself

with privileges at T allahassee Memorial Hospital (TMH), in order

to handle in - patient cases. As a consequence, the Respondent

and Dr. Thai agreed to formalize their practice relationship in

the summer of 1999. They formally opened their joint practice

on June 25, 1999.

5. B.R. moved to the Tallahassee area sometime in the

latter part of the 1990's, either shortly before or after

leaving her abusive husband. After moving to Tallahassee B.R.

was under extreme stress due to lack of financial resources from

her estrange d husband. She was in constant pain as a result of

severe scoliosis in her back, for which she had nine prior

surgeries. The surgeries were unsuccessful in the sense that

she was left with chronic, often severe pain, as a result.

Because of the constant pain she was forced to take prescription

pain medication on a daily basis. She began to suffer from

significant depression due to the constant pain, her severe

financial stress and, as she testified, became addicted to pain

medication and at times could not function without it. She

sought treatment from numerous physicians to be sure that she

always had a supply of prescription pain medication. She became

more and more concerned about money due to being estranged from

her husband and his financial suppo rt. She often had

insufficient funds to buy food and still pay her rent. In early

1999, she began to have suicidal ideations. She was thus

suffering from severe emotional and physical stress.

6. Finally, on March 31, 1999, she admitted herself t o the

TMH. She was extremely underweight at this time and in constant

physical pain and was suffering from severe depression. She was

also suffering from suicidal ideations upon her admission.

7. Dr. Abebe was assigned as her treating psychiatris t at

TMH. The psychiatric treatment for each psychiatric patient at

TMH involved group therapy and individual treatment during the

treating psychiatrist's rounds.

8. During B.R. treatment sessions at TMH, according to her

testimony, Dr. Abebe would talk about topics from his personal

history at times. They discussed a recent incident or incidents

in which her husband or former husband had forced her to have

intercourse. An issue arose in her testimony concerning

Dr. Abebe purportedly telling her th at he had had a vasectomy.

She maintains that he told her this on an occasion in June of

1999 at her apartment when they purportedly had sexual

intercourse and she expressed fear of becoming pregnant. She

maintained he reassured her by telling her that h e had had a

vasectomy. Dr. Abebe however, testified that he may indeed have

told her that he had had a vasectomy, but it was in the context

of treatment at TMH when they discussed the sexual abuse

purportedly committed by her husband and her concern about

becoming pregnant as a result; he counseled her concerning

various means of pregnancy prevention.

9. In any event, B.R. testified that she developed trust

and confidence in Dr. Abebe because she felt he really cared

about her. She felt he would be able to help her overcome her

depression.

10. B.R. was discharged from TMH on April 12, 1999, and

was ordered to follow - up with Dr. Abebe with an appointment on

May 4, 1999, for continued psychiatric treatment and medication.

B.R.'s first appointmen t with Dr. Abebe, for treatment was on

May 4, 1999. On April 28, 1999, she saw him, however, because

she reported to him that she had lost her medication. He gave

her enough medication on that occasion, by prescription, to

provide her until her regularly scheduled appointment on May 4,

1999.

11. B.R. did not appear for her May 4, 1999, appointment

with Dr. Abebe. He or his secretary dispatched the police to

her residence to check on her welfare. When the police came to

her apartment she believed t hat this was another indication that

Dr. Abebe was a "good doctor" and cared about her getting

better. Dr. Abebe then saw B.R. again on May 10, 1999, for

treatment and medication refills.

12. B.R. admitted herself to the hospital again on May 15,

1999, staying in the hospital until May 18, 1999. During this

hospital stay she was treated by Dr. Alcera for depression.

Dr. Abebe refused to treat B.R. during this hospital stay. She

was assigned to the treatment of Dr. Alcera during that

admission to the hospital. Dr. Abebe did accept her for follow -

up treatment, however. She was discharged on May 18, 1999, and

told to follow - up in her treatment with Dr. Abebe, with an

appointment on May 27, 1999. She did not appear for that

appointment.

13. A second occasion arose when B.R. called the

Respondent's office requesting a prescription, alleging that

something had happened to her supply of medication. On this

occasion on or about June 7, 1999, she called the Respondent's

office requesting prescrip tions, stating that her husband had

thrown away her medicine, or words to that effect. This

resulted in B.R.'s seeing the Respondent at his office on June

10, 1999, when he gave her prescription for sixteen tablets of

Lortab. He then saw her at his offic e on June 15, 1999, and

gave her a prescription for a weeks supply with four refills.

Refilling the prescription did not require her to again see the

Respondent. B.R. apparently was also obtaining prescriptions

from at least one other doctor for larger a mounts of pain

medication during the period of late May and early June 1999.

On cross - examination, B.R. admitted that she had engaged in

"doctor shopping" as she termed it, in order to get

prescriptions from the Respondent and other Tallahassee area

physi cians. During the course of her testimony, B.R. also

admitted to forging prescriptions, on at least two occasions.

14. The Respondent saw B.R. on June 15, 1999, for the last

time. On that date he formally discharged B.R. to the care of

Dr. Thai, who was opening his practice with the Respondent on

June 25, 1999. B.R. maintains that the Respondent transferred

her care to Dr. Thai because he told her that he could no longer

see her as a patient because of their alleged sexual

relationship. The Resp ondent, on the other hand, contends that

he discharged B.R. to the care of Dr. Thai because Dr. Thai's

practice is focused on adult patients, while the Respondent's

practice involves treating children.

15. In any event, B.R. made an appointment on June 15,

1999, to see Dr. Thai on July 19, 1999. She kept that

appointment and Dr. Thai met with the patient on July 19, 1999.

On that occasion, B.R. said nothing to Dr. Thai concerning any

inappropriate conduct on the part of the Respondent, making no

m ention of visits to her apartment or any description of sexual

activity or encounters between B.R. and the Respondent.

Dr. Thai's only other contact with B.R. was as a result of a

conversation with a pharmacist. A pharmacist called him to

verify the auth enticity of a prescription that B.R. was

attempting to have the pharmacist fill. The result of that

conversation was that Dr. Thai denied that he had issued that

prescription and directed the pharmacist to report the matter to

the police, it being discove red that B.R. had forged or

otherwise altered that prescription, which she admitted during

her testimony.

16. After the last appointment B.R. had with Respondent on

June 15, 1999, B.R. was arrested and incarcerated, on

approximately June 17, 1999 on a charge of grand theft. This

was related to the fact that she had had a rental car in her

possession for a substantial period of time in excess of the

time provided for in the rental contract, which apparently

related to the period of time she was incapa citated in the

hospital. While she was incarcerated she called the Respondent

to attempt to get him to bail her out of jail. He refused to do

so.

17. B.R. maintains that the Respondent began to visit her

at her residence in early June and visited h er residence on

approximately six to eight occasions, all of which were

purported to be in June. On the first occasion, according to

her version of events, he came to her residence when she was not

present and left her a note indicating that he was concer ned

about her and wanted to check on her welfare. A short time

later, in early June, he allegedly again came to her residence

and on or about this time she maintains that he discussed his

sexual attraction to her and that she performed an act of oral

sex with him. On another occasion in early June prior to her

incarceration on or about June 17, 1999, she testified that he

came to her residence and they engaged in sexual intercourse.

She maintains that a third sexual encounter occurred in late

June of 199 9, after her incarceration, when he had refused to

bail her out of jail, on which occasion they purportedly had

sexual intercourse.

18. B.R. claims that the Respondent always called her

house before arriving and that she did not have a home phone,

bu t only a cell phone. She maintains that on one occasion he

left her money and a telephone credit card. She also contends

that the Respondent left her prescriptions for Lortab on her

coffee table, the last two times that she claims they had sexual

encount ers. The Respondent denies that he ever went to B.R.'s

residence and denies that they ever engaged in any sexual

activity.

19. The Petitioner advances the Respondent's cell phone

records (Joint Exhibit 6) as probative of B.R.'s version of

these even ts. B.R. pinpointed the three alleged sexual

encounters as occurring in June, both before and after her

incarceration, which occurred on or about June 17, 1999. The

Respondent's cell phone records, however, show no phone calls

made to B.R.'s cell phone f rom the Respondent's cell phone

during the month of June. Although B.R. testified that her cell

phone was her only phone, B.R.'s cell phone records are notably

absent from the record in this case. The only phone records

introduced into evidence, the Resp ondent's, did not establish

that the Respondent called B.R. during the month of June 1999.

20. The Petitioner postulates five phone calls made

between July 1, 1999, and August 15, 1999, from the Respondent's

cell phone to B.R.'s cell phone, as probat ive of B.R.'s version

of these events to the effect, that the Respondent would always

call her before coming over to her house, including on those

occasions when they purportedly had a sexual encounter and when

he allegedly later attempted to unsuccessfull y schedule visits

to her house. It is important to note, however, that each of

the five calls at issue are recorded as "one minute" phone

calls, which indicates the minimum charge for simply dialing a

number. Thus, it is also entirely possible that the R espondent

either only called B.R. for a period of one minute or less, or

even never reached B.R. with a phone call or only reached her

voice mail, on any of the five occasions at issue. Both the

Respondent and Dr. Thai testified that they frequently recei ve

pages from their answering service indicating a patient call,

which under the standard of care they must return, according to

Dr. Thai. Dr. Thai testified that in fact he has been called by

a patient of the Respondent and returned that call and told th e

caller that the caller would need to call the Respondent as the

treating physician. Likewise, as to the five phone calls at

issue in July and August 1999, the Respondent may have returned

the phone call and found that the caller may have been a patient

of Dr. Thai's, including, at that point in time, patient B.R.,

who was by that time under the care of Dr. Thai. Thus, the

Respondent may have not had a conversation at all, in such a

one - minute - or - less - duration phone call; may have merely

referenced the caller to call Dr. Thai if the caller who had

left a page was a patient of Dr. Thai (including possibly

patient B.R.); or the Respondent may have indeed called B.R. In

any event, five phone calls during July and August, of one -

minute duration or less, dur ing a period of a month and a half

are not persuasively probative of B.R.'s claim concerning the

Respondent's always calling before attempting to schedule a

rendezvous scheduling with B.R. at anytime in June, July or

August 1999.

21. The Petitioner also contends it to be inculpatory that

the Respondent shared personal information, particularly his

method of birth control, with B.R. B.R. claimed that on one

occasion when they are supposed to have engaged in sexual

intercourse she expressed fears of becoming pregnant and that

the Respondent told her not to worry, that he had had a

vasectomy. This is unpersuasive. On direct examination B.R.

related that it was the Respondent's treatment style to relate

personal experiences or difficulties in his own life in an

effort to motivate her to overcome obstacles and adversity.

B.R. likened the Respondent's motivational style to "Tony

Robbins." This is consistent with the Respondent's description

of his method of interaction or counseling with his patients,

where he described recounting personal experiences of adversity

in his own life in an effort to motivate patients to overcome

difficulties and get better. It is thus plausible that the

Respondent may have mentioned his own method of birth control

when the B.R., in the hospital, raised a concern about becoming

pregnant by her abusive husband as a result of sexual abuse by

her husband.

22. The Petitioner maintains that the Respondent's

testimony in this regard unbelievable. The Petitioner contends

t hat it is incredible that the Respondent would merely discuss

methods of birth control with a patient describing a rape or

sexual abuse by her husband. The record, however, does not

indicate that this is the only counseling advice or comment that

the Resp ondent made to B.R. concerning alleged sexual abuse by

her husband. The record does not establish that this was the

only response he made to her description of sexual abuse by her

husband. Standing alone the Petitioner's description of events

concerning his counseling of B.R. during her hospital stay does

not establish that he was insensitive to the psychiatric

ramifications of alleged sexual abuse by B.R's husband.

23. B.R. claims that she became distraught and extremely

depressed as a result of the alleged sexual exploitation by the

Respondent. She recounts, in essence, that she felt abused and

essentially worthless and treated like a "prostitute" by the

Respondent's alleged conduct, described above. She testified

that she became so distraught as a result of the Respondent, her

conduct that she attempted suicide and purportedly overdosed on

84 Lortab tablets with the result that she was hospitalized on

August 19, 1999. She states that this was a voluntary admission

to the Apalachee Center for H uman Services or as she described

it the "Eastside Facility." She testified that on this occasion

she elected to admit herself at that facility, as opposed to

TMH, because she did not want to have any contact with the

Respondent as a potential treating ph ysician, if she had been

admitted to TMH.

24. Upon the occasion of that admission however, B.R. did

not make any allegations to any of the personnel of that

facility that the Respondent had engaged in the inappropriate

behavior described above. Sh e contends that she failed to do so

because she did not want to "get the Respondent in trouble" and,

due to embarrassment or other reasons, was reluctant to discuss

the matter, liking herself to a rape victim who is reluctant to

describe such an incident.

25. The record, however, belies the occurrence of such a

suicide attempt as the reason for this hospitalization. B.R.,

while testifying that she took 84 Lortabs, a massive overdose,

testified that her stomach was not pumped. Moreover, she

indicat ed that this was a voluntary admission and, based upon

her testimony, she apparently had the presence of mind to make

an election as to which facility she wanted to be admitted to.

Dr. Thai, however, testified unequivocally that an overdose of

84 Lortabs would kill any person if the person's stomach was not

pumped on an immediate basis, even if 84 Lortabs had not been

consumed at once, but over as much as a twelve hour period.

Thus, it is found that this description of a suicide attempt

occurring, and as being based upon extreme distress caused by

the purported sexual abuse of B.R. by the Respondent is false

and a false attempt to inculpate the Respondent in the conduct

described by B.R. as having occurred in June of 1999.

26. In essence, the Petitio ner's theory of this case is

that the Respondent provided prescriptions for drugs to B.R. in

exchange for sex with her. Specifically, B.R. claimed that the

Respondent left her a prescription for Lortab following an

alleged sexual encounter, before her inc arceration, in mid - June

and a second prescription for Lortab following another alleged

sexual encounter after her incarceration, or in late June. The

only prescriptions for Lortab in evidence, however, coincide

with regular office visits and/or phone call s for refills. The

Petitioner alleges that the Respondent wrote another

prescription for Lortab dated June 1, 1999. The Respondent

denied that allegation. The disputed prescription was produced

the morning of the hearing and conditionally admitted, base d

upon the stipulation that the disputed prescription would be

subjected to handwriting analysis, by agreement of counsel. The

disputed prescription was later withdrawn by the Petitioner when

the Petitioner conceded that the Eckerd's pharmacy in question

had made a mistake and that really no prescription dated June 1,

1999, had been written by the Respondent.

27. The Petitioner sought to produce a second disputed

prescription, dated July 15, 1999, which was not disclosed to

the Respondent until it was presented by the Petitioner on

cross - examination. This is not a rebuttal exhibit and had been

in the possession of Petitioner's counsel for at least most of

the day when it was advanced in an effort to impeach upon cross -

examination. The prescriptio n was excluded from evidence for

reasons reflected in the transcript of this proceeding. The

Petitioner's proposed fact findings contained in the

Petitioner's Proposed Recommended Order based upon this

prescription are not accepted.

28. Parenthetic ally, it is noted that the Respondent

conceded that the signature on this July 15, 1999, prescription

is his but that he did not write the other information, (the

patient's name and the date) on that prescription. If indeed

B.R. obtained that prescription on July 15, 1999, or if it was

written on that date, this would contradict B.R.'s testimony

that, after their alleged third sexual encounter in late June

that she was so disgusted with the Respondent that she refused

to see him, admit him to her residence or even answer his phone

calls. Alternatively, it is also possible that the date on the

prescription was altered by B.R. or, under Petitioner's theory

of the case it could conceivably have been a prescription signed

by the Respondent and given to the B.R . during their purported

rendezvous during the month of June 1999, which she completed or

filled out with her name and the July 15th date at some point.

Given the fact that the Respondent candidly admitted the

signature on the prescription was his, and gi ven the fact that

the B.R. admitted to forging other prescriptions on more than

one occasion and for the other reasons of record for which

B.R.'s testimony is found uncreditable, this is the least likely

explanation. In any event, because of the problemat ic

circumstances surrounding the advanced Exhibit even had it been

admitted into evidence the prescription dated July 15, 1999, can

be accorded no evidentiary weight.

29. In essence, it must be found that the Respondent's

testimony and evidence are more credible and worthy of belief

than that adduced by the Petitioner in the form of B.R.'s

testimony and related Petitioner evidence. In addition to the

reasons found above for accepting the Respondent's testimony and

evidence over that offered by the Petitioner, there is, for

instance, record evidence that B.R. may have made these

allegations at least in part for pecuniary gain. The

Respondent's Exhibit three, in evidence, demonstrates this as a

possible motive, especially in light of B.R.'s testimony

regarding to the subject matter of the letter which is

Respondent's Exhibit three, to the effect that she sought the

sum of $25,000.00 from the Respondent. This was proposed

evidently in return for declining to pursue her complaint to, or

"cooperation" w ith the Petitioner agency. 1/

30. B.R. also testified that she was transferred to the

care of Dr. Thai so that the Respondent could continue his

purported illicit affair with her. Dr. Thai and the Respondent,

however, testified that B.R. was going to be transferred to

Dr. Thai's care in the summer of 1999 in any event, by an

agreement which dates from their February 1999 decision to

combine their practices and because Dr. Thai focused his

practice on adult patients and Dr. Abebe focused on child

pat ients. B.R. was in fact transferred to Dr. Thai

contemporaneously with the time that he moved his practice to

the offices of the Respondent. More importantly, Dr. Thai

testified that the Respondent introduced him to B.R. during her

March 1999 hospitaliza tion at TMH and informed her that this

would be the psychiatrist he would send her to as an outpatient.

B.R.'s testimony is also contradicted by documentary evidence

that when she was re - admitted to TMH, in May of 1999, that the

Respondent would not accep t her as a patient.

31. B.R. also testified that the Respondent went to her

house on six or eight occasions. She testified that she told

her mother of his coming to her residence, but no testimony was

taken from B.R.'s mother which might have corrob orated her

version of these events.

32. B.R. also testified that she wrote a letter to TMH

complaining about the Respondent coming to her home, before they

allegedly engaged in sexual activity and that the hospital had

responded to her with a lette r of its own requiring her to fill

out a form with certain information regarding the events she had

purportedly related to hospital personnel. No such

correspondence or documents were produced by the Petitioner to

corroborate this testimony. B.R. testifi ed that the Respondent

told her, upon one of the alleged early visits to her apartment,

that even when she had been in the hospital when he had first

begun treating her, that he was sexually attracted to her. She

attributed the statement to him, regarding that time period, as

being to the effect that he was "f - ing her with his eyes." He

denied making such a statement. Her testimony in this regard,

and in relating her version of events, concerning his purported

visits to her residence, is belied by the fa ct that when she

missed her May 4, 1999, appointment, after she was released from

TMH, that instead of using that as an excuse to go check on her

at her home that he directed his secretary to summon the police

to check on her welfare at her home. He sent a third party to

B.R.'s home rather than going himself.

33. B.R. testified that the Respondent gave her money, a

phone credit calling card, and prescriptions under the

Petitioner's theory that the Respondent was trading "drugs for

sex." Yet, at th e very point in time when the Respondent was

allegedly involved in an illicit affair with B.R., she became

incarcerated and the Respondent refused to bail her out of jail.

B.R.'s testimony simply is not clothed with an aura of truth.

It lacks circumstant ial probability of reliability.

34. B.R., in describing the Respondent's purported visits

to her residence, and their purported, illicit sexual

activities, described walking him to the door of her residence

and observing him drive away in his car. She described a late -

model car of dark green color. The Respondent on the other hand

testified that his car at this time "cream colored" was a 1995

Mazda.

35. Moreover, when the patient voluntarily admitted

herself to the Apalachee Center for Human Services a second

time, on September 20, 1999, when she made the allegations that

the Respondent had engaged in inappropriate, sexually - related

behavior with her, she purportedly told her version of these

events to a staff member, Linda Johnson, as well a s to mental

health counselor Andrew Daire and Dr. Degala, M.D. Testimony

and documentary evidence adduced through Andrew Daire and Dr.

Degala are in evidence, by way of their recounting of the report

of the alleged inappropriate conduct which B.R. made t o them.

This apparently initiated the investigation resulting in the

instant proceeding. However, staff counselor Linda Johnson was

not called as a witness by the Petitioner.

36. In summary, the testimony of the Respondent and the

evidence addu ced by the Respondent is accepted as more credible

and worthy of belief than the testimony of B.R. and the evidence

adduced by the Petitioner. It is found that the above -

referenced, alleged inappropriate conduct on the part of the

Respondent, involving vi sits to the patient's residence and

purported sexual activity with the patient B.R., did not occur.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120. 569 and 120.57, Florida Statutes.

38. Section 458.331(2), Florida Statutes, (2000) empowers

the Board of Medicine to revoke, suspend or otherwise discipline

the license of a physician for violating Section 458.331(1),(j),

Florida Statutes. Section 458.33 1(1)(j), Florida Statutes

(2000), prohibits "exercising influence within a patient -

physician relationship for the purposes of engaging a patient in

sexual activity. A patient shall be presumed to be incapable of

given free, full and informed consent to se xual activity with

his/her physician." Section 458.331(1),(x), Florida Statutes

(2000), proscribes "violating any provision of this chapter, a

rule of the board or department, or a lawful order of the board

or department previously entered in a disciplina ry hearing or

failing to comply with a lawfully issued subpoena of the

department."

39. The Petitioner in this proceeding is not seeking

suspension or revocation of the Respondent's license. The

Petitioner amended its Administrative Complaint to remove b oth

revocation and suspension as potential penalties in order to

lower its burden of proof to one of "the greater weight of the

evidence" versus the clear and convincing standard which applies

to proceedings in which the agency is seeking revocation or

sus pension of a physicians license. Section 458.331(3), Florida

Statutes (2000).

40. The Petitioner has not demonstrated by the greater

weight of the evidence, or by preponderant evidence, that the

Respondent committed the inappropriate conduct and the stat utory

violations charged, as demonstrated by the above findings of

fact and by the Administrative Law Judge's findings concerning

the credibility of the witnesses and evidence. Because the

Petitioner failed to meet its burden of proof, the issue

concernin g penalties need not be addressed.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties it is

RECOMMENDED:

T hat a final order be entered finding that the Respondent

did not violate the statutory provisions charged by the agency

and that the administrative complaint be dismissed in its

entirety.

DONE AND ENTERED this 7th day of February, 2003, in

Tallahassee, Leo n County, Florida.

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 27 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us.

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February, 2003.

ENDNOTE

1/ Parenthetically, it is noted that there is a representation

by the Respondent' s co - counsel, at the outset of the hearing, to

the effect that B.R. had apparently initiated preliminary steps

(demand letter) regarding a potential civil action against the

Respondent.

COPIES FURNISHED:

Kim M. Kluck, Esquire

Department of Health

10 52 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Stephen R. Andrews, Esquire

Andrews & Walker

822 North Monroe Street

Tallahassee, Florida 32303

R. S. Power , Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

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.