01-002440PL Department Of Health, Board Of Medicine vs. Ronald Malave, M.D. Status: Closed Recommended Order on Wednesday, August 21, 2002.

Summary: Physician had sexual relations with patient in violation of Sections 458.331(1)(j), (t), and (x), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2440PL

)

RONALD MALAVE, M.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on January 28 through 30, and June 24 and 25, 2002, in

Orlando, Florida, before Susan B. Kirkland, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Robert Byerts, Esquire

Department of Health

4052 Bald Cypress Way, BIN C65

Tallahassee, Florida 32399 - 3265

For Respondent: David P. Hill, Esquire

128 East Livingston Street

Orlando, Florida 32801

Chandler R. Muller, Esquire

1150 Louisiana Avenue

Suite 2

Post Office Box 2128

Winter Park, Florida 32790 - 2128

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)(j),

458.331(1)(t), and 458.331(1)(x), Florida Statutes, and, if

so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 11, 20 00, the Petitioner, Department of Health,

Board of Medicine (Department), filed an Administrative

Complaint against Respondent, Ronald Malave, M.D. (Dr.

Malave), alleging that he violated Subsections 458.331(1)(j),

458.331(1)(t), and 458.331(1)(x), Florida Statutes.

On September 7, 2000, Dr. Malave filed a request for

formal hearing. The request was forwarded to the Division of

Administrative Hearings on June 19, 2001, for assignment to an

administrative law judge.

The final hearing was scheduled for Septe mber 10 through

14, 2001. On September 4, 2001, Respondent requested a

continuance, which was granted. The final hearing was

rescheduled to commence on January 28, 2002.

The parties filed a Joint Pre - hearing Stipulation and

stipulated that Dr. Malave at all material times was a

licensed physician in the state of Florida, having been issued

license number ME 0058695.

At the final hearing held on January 28 through 30, 2002,

the Department called the following witnesses: Dr. Mary

Lidkea, patient J.P., Megh an Clement, John Eckerson, Michael

Wickham, Linda Schwictenberg, and Dr. Charles Mutter. Joint

Exhibit 1 was entered into evidence. Petitioner's Exhibits 1

through 7, 8(a), 8(b), 8(d), 8(e), 8(f), 8(g)(1), 8(g)(2),

(8)(g)(3), and 9 through 16 were admitt ed in evidence. The

Volusia County Sheriff's Department maintained custody of

Petitioner's Exhibit 8(c), a sealed envelope containing

panties; Petitioner's Exhibit 8(e), a sealed package

containing vials of blood; Petitioner's Exhibits 8(g)(1),

8(g)(2), a nd 8(g)(3), sealed packages containing panties;

Petitioner's Exhibit 10, a sealed package received by Deputy

Wickham from Ms. McConkie on February 2, 2000; and

Petitioner's Exhibit 11, a sealed package labeled clothing

received by Deputy Wickham from Ms. M cConkie on February 2,

2000.

Respondent presented no witnesses and no exhibits at the

final hearing on January 28 through 30, 2002.

At the final hearing, the parties agreed to file their

proposed recommended orders within 20 days of the filing of

the trans cript. The four - volume Transcript was filed on

March 8, 2002. A corrected copy of Volume IV and a corrected

portion of Volume II were filed on March 26, 2002. On

March 27, 2002, Respondent filed an Unopposed Motion for One

Day Extension for Filing o f Proposed Recommended Order. The

motion was granted. The parties timely filed their Proposed

Recommended Orders.

On May 1, 2002, Respondent filed Respondent's Motion to

Reopen Formal Hearing, representing that the criminal case

against Respondent had be en concluded. An Order Granting

Motion to Reopen Formal Hearing was issued on May 10, 2002,

allowing Respondent to testify in his own behalf.

On June 24, 2002, the final hearing was reconvened and

Respondent testified in his own behalf. Respondent's Exhi bits

3, 5, 8, and 14 were admitted. Respondent's Exhibits 1, 2, 4,

5A, 6, 7, 9 through 13, and 16 through 23 were not admitted,

but were proffered. Respondent's Exhibit 15 was withdrawn.

The three - volume Transcript of the portion of the final

hearing hel d on June 24 and 25, 2002, was filed on July 23,

2002. The parties timely filed their Proposed Recommended

Orders, which have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulat ing the practice of medicine pursuant to Section 20.43

and Chapters 456 and 458, Florida Statutes.

2. At all times material to these proceedings Dr. Malave

was a licensed physician in the state of Florida, having been

issued license number ME 0058695.

3. Patient J.P. first started treating with Dr. Malave

in September 1994. She has suffered from various mental

illnesses since her childhood. As a child, she was physically

and sexually abused by her father and her uncles and began to

experience episodes o f "lost time" in which she would black

out and be unable to recall events which had occurred. These

occurrences of "lost time" continued into her adulthood.

4. Patient J.P. has also suffered from severe depression

for the majority of her life. In Novemb er 1982, she attempted

suicide two times and was hospitalized for those attempts, but

did not receive any outpatient counseling for the depression

following her release from the hospital.

5. In addition to experiencing "lost time" and being

depressed, pat ient J.P. also was bulimic. In 1988, she met

R.P. who was a postmaster at the post office where she worked

in Imperial Beach, California. She was experiencing "lost

time" during her delivery of mail. R.P. referred her to a

mental health counselor for he r depression and work - related

stress. The counselor referred patient J.P. to a

psychiatrist, who prescribed anti - depressants and anti - anxiety

medications for her.

6. During the same period of time, patient J.P. received

treatment for bulimia, including t wo weeks of inpatient

treatment at the Alvaredo Parkway Institute.

7. Patient J.P. married R.P. in 1989 and moved to

Florida in 1990. During the first four years that patient

J.P. lived in Florida, she was treated by several different

physicians for depr ession and bulimia. In 1992, patient J.P.

became the patient of Dr. Phillip Sinaicin, who also treated

her for bulimia and depression. He tried different

combinations of medications and electroconvulsive therapy, but

the treatments were not working. Dr. Sinaicin referred patient

J.P. to Dr. Malave, a psychiatrist, for a second opinion.

8. Patient J.P. saw Dr. Malave on September 4, 1994, for

a second opinion evaluation. Dr. Malave diagnosed patient

J.P. as suffering from Dissociative Identity Disorder (DID),

formerly known as multiple personality disorder and as having

schizoaffective features. Patient J.P. has multiple distinct

personalities or voices, as patient J.P. refers to them. She

has a core or birth personality, which appears as J.P. She

ha s other personalities including the following: Bridget, who

is sexually preoccupied; Vanessa, who appears with a street -

smart vocabulary and manifests when she believes that she

needs to take charge of a situation which patient J.P. is not

handling very w ell; Monica, who is a mothering personality to

Bridget; Elaine, who is the leader of the group of

personalities; Delilah Servano, who is also known as the

researcher; and the Brother, who is a street - smart male.

9. J.P., the core personality, is unable to recall and

relate when an alter personality is manifesting itself. When

another personality takes over, patient J.P. describes the

experience as "losing time." The other personalities are

sometimes aware of each other and of what happens to each

other . The personality Elaine is aware of what all of the

other personalities are doing.

10. While being treated by Dr. Malave, patient J.P.

disclosed to him that she had been sexually abused by her

father and her uncles when she was a child. Dr. Malave

expl ored the sexual abuse by using mental regression exercises

which were intended to help patient J.P. remember the abuse.

Patient J.P. noticed that she was losing time during her

sessions with Dr. Malave, and that it mostly occurred while

they were doing th e regression exercises.

11. During their treatment sessions, Dr. Malave

emphasized to patient J.P. that it was important for her to

trust him in order for her to get better. Patient J.P. did

come to trust him and believed that as long as she continued

to see him that she would be all right.

12. In 1995, patient J.P. began to notice that after

some sessions with Dr. Malave when she had lost time that her

underwear would be wet and sometimes her jaw would be sore and

cramped. On these occasions, Dr. M alave would not escort her

out of his office as he normally did after a session.

13. On several occasions when patient J.P. had lost time

during a session, she recalled coming back to herself as J.P.,

the core personality, while she and Dr. Malave were engaged in

a sexual act. The first occasion occurred around Christmas in

1995. Patient J.P. lost time and came back to herself during

a session and found herself kneeling in front of Dr. Malave

performing oral sex on him in his office. She lost time

sho rtly thereafter.

14. Patient J.P. recalled another occasion when she came

back to herself during a session and found Dr. Malave sucking

on her left breast and kissing her neck and face. Another

time during a session, Dr. Malave asked patient J.P., while

she was in her core personality state, if she were Bridget.

Patient J.P. replied that she was. Dr. Malave went to his

office door and locked it and then engaged patient J.P. in sex

on his desk.

15. On a fourth occasion, patient J.P. came to herself

and found herself lying on the floor in Dr. Malave's office

and having sexual intercourse with him. Following that

session, patient J.P. experienced vaginal soreness and noticed

that her underwear was wet when she left his office. She

decided to save the wet underwear and stored it under her bed.

16. Until June 1999, patient J.P. continued to save her

wet underwear and place them under her bed after sessions with

Dr. Malave when she suspected that sex may have occurred

during the session. In June 1999, she placed the underwear in

a safe deposit box along with a note explaining her

relationship with Dr. Malave.

17. The last time that patient J.P. came back to herself

while having sex with Dr. Malave was in August 1999. At that

time she found herself having sex with Dr. Malave in his chair

in his office.

18. Patient J.P.'s husband noticed that at times

something was not right about patient J.P. following her

sessions with Dr. Malave. Sometimes when patient J.P.

exited Dr. Malave's office, her husband noti ced that her hair

was disheveled, her blouse was undone, her lipstick was

smeared, and her skirt was wrinkled. When he asked patient

J.P. what had happened, she told him that she had lost time

during the session. Patient J.P.'s husband asked for an

expla nation from Dr. Malave, who told him that patient J.P.

had changed personalities during the session and caused her

appearance to become disheveled. Dr. Malave further advised

that it was good that she was in session when it happened

because patient J.P. w ould be safe with him.

19. Dr. Malave spoke with patient J.P.'s husband on

numerous occasions concerning the diagnosis of DID. During

one of their conversations, Dr. Malave told the husband that

he had treated another woman with DID and that she had a

se xually aggressive personality similar to patient J.P.'s

personality Bridget. Dr. Malave advised the husband to keep

patient J.P. away from men and to try to keep her at home

because she just wanted to have sex.

20. In August 1999, patient J.P. contacted attorney

Linda Schwictenberg concerning her suspicions about Dr. Malave

having sex with her during their treatment sessions. From

August to October 1999, patient J.P. turned over a total of

ten pairs of underwear to Ms. Schwictenberg. Patient J.P.

kept o ne pair of underwear in her safety deposit box for

security reasons. Ms. Schwictenberg sent the underwear in

three separate submissions to Lab Corp, a forensic laboratory

in North Carolina for DNA analysis. Ms. Schwictenberg, on

instructions from Lab Cor p, took an oral swab from patient

J.P. and sent that specimen to Lab Corp. From the time Ms.

Schwictenberg received the panties until she forwarded them to

Lab Corp, the panties remained in a drawer in her office to

which only she had access.

21. Lab Cor p received the submissions and performed a

presumptive test to determine whether seminal fluid was

present on the first three pair of panties that were

submitted. A cutting was taken from one pair of ivory colored

panties, the presumptive test revealed th e presence of semen.

Two black pairs were tested by rubbing filter paper on the

panties. The presumptive tests for the two black pairs failed

to reveal semen.

22. Lab Corp did a DNA analysis on the remaining seven

pairs of panties.

23. DNA is the genet ic blueprint of our lives and

contains the codes for every physical characteristic and every

chemical reaction which takes place in our bodies. With the

exception of identical siblings, each person's DNA is unique.

Nuclear DNA is inherited in equal porti ons from our mothers

and fathers.

24. DNA is used in forensic cases to determine the

identity of a DNA sample. Certain areas of the DNA molecule

are different in the general population. These differences

are used to develop a profile for a particular sa mple which is

then compared to a profile of a known reference sample in

order to determine whether the profiles are similar or

different.

25. In cases where sexual misconduct is involved and

where there may be two different sources of DNA (the victim

and the suspect), a differential extraction is performed. The

purpose is to separate the DNA of the sperm source from the

DNA of the non - sperm source so that a pure DNA profile for

each will be obtained.

26. Lab Corp determined that the DNA profile from the

oral swab submitted by patient J.P. could not be excluded as

being the source of the non - sperm DNA in all of the panties

except one in which a non - sperm fraction was not obtained.

The profile developed for the sperm fraction is the same

profile developed on the seven pairs of panties on which sperm

was detected. In other words, only one sperm donor was

detected. Lab Corp did not have a reference specimen from Dr.

Malave to make a comparison of the sperm DNA found in the

panties.

27. It is possible to tr ansfer the DNA of the sperm

fraction from one article of clothing to another. The

transference could be done by rubbing the two articles of

clothing together or by wetting the article containing the

sperm and rubbing it against the other article of clothi ng.

Based on the credible testimony of Meghan Clement, an expert

in DNA identification and analysis and in forensic science,

the concentrations of DNA in the sperm fraction were too high

to have resulted from the sperm having been transferred from

another article of clothing to patient J.P.'s panties.

28. On January 6, 2000, Ms. Schwictenberg received the

panties from Lab Corp. She gave some of the panties to

Investigator John Eckerson of the Volusia County Sheriff's

Office. On January 20, 2000, Dr. Mal ave gave a blood sample

to the sheriff's office. Investigator Eckerson sent three

pairs of patient J.P.'s panties and Dr. Malave's blood sample

to the Florida Department of Law Enforcement (FDLE) laboratory

for DNA analysis in January 2000.

29. FDLE pers onnel made a staincard from Dr. Malave's

blood sample. The FDLE testing revealed that there was the

possible presence of semen on one of the pairs of panties and

no indications of semen present on the other two pairs sent in

January 2000. A crime laborat ory analyst for FDLE packaged a

cutting of the panties containing semen for a later DNA

analysis.

30. On February 3, 2000, patient J.P. went to the Rape

Crisis Center in Daytona Beach, Florida, where a blood sample

was taken from her by a registered nurse . The nurse turned

the blood sample over to Deputy Wichman, who also took custody

of a pair of panties from patient J.P. Deputy Wichman

transported the blood sample and the pair of panties to the

sheriff's office, where he placed them in an evidence lock er.

Patient J.P.'s blood sample was sent to the FDLE laboratory,

where a staincard was prepared.

31. On June 20, 2000, Investigator Eckerson took custody

of the remaining pairs of panties from Ms. Schwictenberg.

Those panties were sent to FDLE for testi ng. The presence of

semen containing spermatozoa was found on four of the pairs of

panties submitted in June. A crime laboratory analyst for

FDLE prepared cuttings of the four pairs of panties and sent

them to another crime laboratory analyst at FDLE for DNA

analysis.

32. Timothy Petree, a crime laboratory analyst in the

DNA section of the FDLE laboratory, performed a DNA analysis

on the blood samples from Dr. Malave and patient J.P. and the

five pairs of panties in which semen was found. He first

perfo rmed a differential extraction of the cuttings which

enabled him to separate the sperm cell DNA from any epithelial

or skin cell DNA. The next steps include determining how much

human DNA was present, setting up the PCR reaction which makes

copies of the target DNA segments, and then performing a DNA

analysis to determine which DNA fragments were present in the

samples.

33. Mr. Petree developed a DNA profile for each of the

blood samples and the sperm cells on each of the underwear

cuttings. The DNA prof ile developed from the sperm cells on

all five of the underwear cuttings were the same, meaning that

there was one sperm donor. The sperm cell DNA profile was

compared to the DNA profile developed from Dr. Malave's blood

sample. The sperm cell DNA profil e matched Dr. Malave's DNA

profile at all 14 DNA locations that were compared. The

frequency of occurrence of that profile in different

populations is as follows: one in 19 quadrillion Caucasians,

one in 290 quadrillion African Americans, and one in 13

q uadrillion Hispanics. Based on the evidence presented, the

sperm found in patient J.P.'s panties came from Dr. Malave.

34. Dr. Malave testified that between January and

June 1999, he lost approximately 63 pounds. He further

testified that as his underwe ar would become too large that he

would use them to clean up after sexual activity with his wife

and discard the underwear in the garbage. It would appear

that Respondent's testimony on this subject would be for the

inference that somehow the semen that m ay have been present in

his underwear in the garbage was transferred to patient J.P.'s

panties, thereby explaining how his semen was found on her

underwear. Such an inference is not credible, particularly

given the testimony of Meghan Clement that the con centration

of sperm present on some of patient J.P.'s panties was too

concentrated to have been transferred from another article of

clothing.

35. The relationship between a physician and a patient

is a sacred trust. The doctor's duties to the patient are to

do no harm to the patient and to practice with the greatest

diligence to serve the patient's best interest. In this

private and confidential relationship, the psychiatrist

explores the patient's problems by discussing very intimate

thoughts and feelin gs.

36. Given the level of emotional intimacy in the

patient - psychiatrist relationship, the patient sometimes

develops sexual feelings toward the psychiatrist, and the

psychiatrist sometimes develops sexual feelings toward the

patient. These reactions ar e known as transference and

counter - transference, respectively. The psychiatrist has the

obligation to recognize the physical and verbal signs of

transference in the therapeutic relationship and make sure

that the strict sexual boundaries in the relations hip are not

violated. The personality known as Bridget and Dr. Malave

developed sexual feelings toward one another, and it was the

responsibility of Dr. Malave to ensure that those feelings did

not result in sexual relations between them.

37. Sexual rela tions between the psychiatrist and the

patient are forbidden. Sex within the patient - psychiatrist

relationship is very destructive in the therapeutic process

and can result in the patient experiencing feelings of guilt,

mistrust, and low - self esteem -- all of which are counter -

therapeutic.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding. Sections 120.569 and 120.57, Florida

Statutes.

39. The Department has allege d that Dr. Malave violated

Subsections 458.331(1)(j), (t), and (x), Florida Statutes,

which provide:

(1) The following acts shall constitute

grounds for which disciplinary actions

specified in subsection (2) may be taken:

* * *

(j) Exercising influ ence 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 activities with his or her

physician.

* * *

(t) Gross or repeated malpractice or

the failure to practice medicine with that

level of care, skill, and treatment which

is recognized by a reasonably prudent

similar physician as being acceptable under

similar conditions and circumstances.

* * *

(x) 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

disciplinary hearing or failing to comply

with a lawfully issued subpoena of the

department.

40. The Department alleged that Dr. Malave violated

Subsection 458.331(1)(x), Florida Statutes, by violating

Section 458.329, Florida Statutes, and Rule 64B8 - 9.008,

Florida Administrative Code. Section 458.329, Florida

Statutes, provides:

The physician - patient relationship is

foun ded on mutual trust. Sexual misconduct

in the practice of medicine means violation

of the physician - patient relationship

through which the physician uses said

relationship to induce, or attempt to

induce the patient to engage, or to engage

or attempt to e ngage the patient in sexual

activity outside the scope of the practice

or the scope of the generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of

medicine is prohibited.

41. Rule 64B8 - 9.008, Florida Administrati ve Code,

provides:

(1) Sexual contact with a patient is

sexual misconduct and is a violation of

Sections 458.329 and 458.331(1)(j), Florida

Statutes.

(2) For purposes of this rule, sexual

misconduct between a physician and a

patient includes, but i t 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 professi onal setting or

outside of it;

2. may reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, patient, or

any third party; or

3. may reasonably be interpreted by the

patient as being sexual.

42. The Departm ent has the burden to establish by clear

and convincing evidence the violations set forth in the

Administrative Complaint. Department of Banking and Finance v

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

43. The Department has established by clear and

convincing evidence that Dr. Malave had sexual intercourse

with patient J.P. during the course of his treatment of her

and that Dr. Malave used his influence within the physician -

patient relationship to engage patient J.P. in having sexual

relations wi th him for his own gratification. The Department

has established by clear and convincing evidence that Dr.

Malave failed to practice medicine with that level of care,

skill, and treatment which is recognized by a reasonably

prudent similar physician as be ing acceptable under similar

conditions and circumstances by having a sexual relationship

with patient J.P.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a Final Order be entered finding that

Ronald Malave, M.D., violated Subsections 458.331(1)(j), (t),

and (x), Florida Statutes, revoking his license to practice

medicine, and assessing the costs of the investigation and

prosecution of the case against him.

DONE AND ENTERED this 21st day of August, 2 002, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2002.

COPIE S FURNISHED:

Robert C. Byerts, Esquire

Department of Health

4052 Bald Cypress Way, BIN C65

Tallahassee, Florida 32399 - 3265

William M. Furlow, Esquire

Katz, Kutter, Haigler,

Alderman, Bryant & Yon

106 East College Avenue, Suite 1200

Post Office Box 187 7

Tallahassee, Florida 32302 - 1877

David P. Hill, Esquire

128 East Livingston Street

Orlando, Florida 32801

Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Chandler R. Muller, Esquire

1150 Loui siana Avenue, Suite 2

Post Office Box 2128

Winter Park, Florida 32790 - 2128

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.