02-004826PL Department Of Health, Board Of Osteopathic Medicine vs. Arthur T. Magrann, Iii, D.O. Status: Closed Recommended Order on Tuesday, August 5, 2003.

Summary: Respondent exercised influence to engage in sexual activities with patient during the time he treated patient. Recommend one-year suspension of license to practice osteopathic medicine and administrative fine of $2,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH )

BOARD OF OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4826PL

)

ARTHUR T. MAGRANN, III, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on February 27 and 28, 2003, in Sarasota, Florida, before

Carolyn S. Holifield, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEAR ANCES

For Petitioner: Bruce A. Campbell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent : Paul Watson Lambert, Esquire

1203 Governor’s Square Boulevard

Magnolia Centre, Suite 102

Tallahassee, Florida 32311 - 2960

STATEMENT OF THE ISSUES

The issues are: (1) Whether Respondent exercised influence

within a physician - patient relationship for the purpose of

engaging a patient in sexual activity in violation o f

Subsection 459.015 (1)(l), Florida Statutes; (2) Whether

Respondent engaged a patient in sexual activity outside the

scope of practice or the scope of generally accepted examination

and treatment of the patient in violation of Section 459.0141,

Florida S tatutes; and (3) If so, what disciplinary action should

be taken against his license to practice as an osteopathic

physician.

PRELIMINARY STATEMENT

On or about October 26, 2001, Petitioner, the Department of

Health, Board of Osteopathic Medicine, issued a two - count

Administrative Complaint which alleged that Respondent, a

licensed osteopathic physician, violated provisions of

Chapter 459, Florida Statutes, between August 1999 and

October 1999, and that, as a result thereof, his license as an

osteopathic ph ysician should be disciplined. Count One alleges

that Respondent violated Subsection 459.015(1)(l), Florida

Statutes, by exercising influence within a physician - patient

relationship for the purpose of engaging a patient in sexual

activity. Count Two alle ges that Respondent violated

Section 459.0141, Florida Statutes, by using the osteopathic

physician - patient relationship to engage Patient K.C. in sexual

activity outside the scope of practice or the scope of generally

accepted examination and treatment of the patient, while he was

treating Patient K.C.

Respondent challenged the allegations and timely requested

a formal hearing. On or about February 25, 2002, the matter was

forwarded to the Division of Administrative Hearings (Division)

and was assigned C ase No. 02 - 0837. The case was assigned to

Administrative Law Judge Daniel Manry. The final hearing was

initially scheduled for May 22 and 23, 2002, but was continued

until the June 5 and 6, 2002, at the request of Respondent.

However, the Division's fil e was closed without a final hearing

after the parties filed a Joint Motion to Relinquish

Jurisdiction for the Purpose of Additional Discovery. The Order

Closing File provided that either party could later request that

the Division reopen the case.

On or about December 9, 2002, the Department of Health

resubmitted the Administrative Complaint and Respondent's

Election of Rights form to the Division. The new case number

assigned to the matter was Case No. 02 - 4826. By Notice issued

January 8, 2003, the fi nal hearing was scheduled for

February 18, 2003, but was subsequently rescheduled for

February 27 and 28, 2003.

Prior to the final hearing, the parties filed a Pre - hearing

Stipulation in which they stipulated to certain facts that

required no proof at hea ring. At the final hearing, Petitioner

presented the testimony of five witnesses. Petitioner's

Exhibits numbered 1 through 6, 8, and 9, which included the

deposition testimony of Charles F. Blake, Paul Kenneth

Michaels, M.D., and Respondent, were receive d into evidence.

Respondent testified on his own behalf and presented the

testimony of six witnesses. Respondent's Exhibits 1 through 5,

which included the deposition testimony of Andrew Synder and

William Randolph Klein, were received into evidence. Th e record

was left open to permit the late - filing of Respondent Exhibit

numbered 5. To - date, that exhibit has not been filed.

The hearing Transcript was filed on March 17, 2003. At the

conclusion of the hearing and at the request of the parties, the

time for filing proposed recommended orders was set for 45 days

from the filing of the Transcript. Prior to that time, at

Respondent's request, the time to file proposed recommended

orders was extended. The parties timely filed Proposed

Recommended Orders un der the extended time period which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, the Department of Health, Board of

Osteopathic Medicine, is the state agency charged with

regulating the practice of osteopa thic medicine pursuant to

Chapters 455 and 459, Florida Statutes.

2. Respondent is and has been at all times material hereto

a licensed osteopathic physician in the state of Florida, having

been issued License No. OS - 004450.

3. Respondent has a bachelo r’s degree and a master’s

degree in clinical psychology and experimental psychology from

Temple University, was an assistant professor of psychology at a

community college before studying osteopathic medicine, and

taught as an assistant professor of psychi atry in family

practice at Southeastern Osteopathic Medical School. Respondent

completed a residency program at Southeastern Osteopathic

Hospital in North Hollywood, Florida, and also completed a

three - year family practice residency program. After comple ting

his residency programs, Respondent moved to Sarasota, Florida,

and began as a family practice physician.

4. In December 1998, Patient K.C. (K.C.) was 33 years old,

married, and the mother of two children, six and two years old.

Before getting marrie d, K.C. had lived with her parents. She

had attended community college for two years but did not obtain

a degree. K.C. had been employed as a sales clerk and clerical

staff person.

5. On or about December 29, 1998, K.C. first presented to

Respondent suf fering from migraine headaches and neck pain,

chronic conditions she had suffered for approximately ten years.

6. From December 29, 1998, through or about October 1,

1999, Respondent provided osteopathic medical treatment for pain

to K.C. During this pe riod of time, Respondent treated K.C.'s

migraine headaches and neck pain with heat, osteopathic

manipulation, and prescription medication.

7. Respondent also diagnosed anxiety and depression for

K.C. and prescribed medication, Ativan, for this condition.

Throughout the time Respondent saw K.C., he also prescribed up

to six tablets per day of a sedative, Fioricet.

8. During the time that Respondent was treating K.C., he

saw K.C. once or twice a month, except for April, August, and

September 1999. Respo ndent's records reflect that he saw K.C.

four times in April, three times in August, and six times in

September.

9. There are several manipulation techniques used by

Respondent in treating patients. One manipulation technique

used by Respondent invo lves traction of the neck and movement of

the patient’s head while the patient is lying down on her back.

Another technique, while the patient is lying on her back,

involves Respondent’s using his chest to exert pressure down on

the patient’s crossed arms and body through the spine to

Respondent’s hands located behind her neck and thoracic spine.

Another technique has the patient roll over to the side with the

leg up to the side while Respondent adjusts her pelvic bone.

During this procedure, Respondent’s hand and forearm arm are

placed on the buttocks to effect a pushing or pulling of the

pelvic bone. The last technique Respondent provides is for the

upper thoracic and lower neck area. For this, the patient

places her hands on top of her head. Responde nt then brings his

hands around the torso from behind, placing them at the back of

her neck. While the hands provide traction to the neck,

Respondent pushes his chest against the spine of the patient to

lift the thoracic vertebrae. It is not uncommon dur ing this

procedure for Respondent to brush his hands on the patient’s

breast.

10. Respondent’s normal office procedure is to do

manipulations on patients in his treatment room with the door

closed and no other persons present for 10 to 15 minutes.

11. Fr om December 1998 until August 12, 1999, Respondent

provided adjustments to K.C. and prescribed medication and did

not engage in any sexual activity or relationship with K.C.

12. Prior to August 12, 1999, during his treatments of

K.C., Respondent sometimes engaged in "random conversations."

For example, during one treatment Respondent asked what kind of

car she drove and when she told him, Respondent asked K.C, if

her husband cared about her. Respondent told K.C. that a sports

utility vehicle (SUV) was a safe vehicle, especially for someone

with her condition and indicated that his wife drove an SUV.

Respondent then insinuated that if K.C.'s husband cared about

her, he should or would buy her an SUV. During another

treatment, Respondent told K.C. that sh e had a good body and

asked if she had been a cheerleader. During another treatment,

Respondent, while engaging in conversation with K.C., made an

unrelated statement about how many times per week the average

married couple has sex. At another time, whil e treating K.C. at

his office, Respondent mentioned that the sex life of people

with chronic pain may be affected by their condition and asked

if her sex life was so affected. Still, during another

treatment, Respondent asked K.C. about her relationship w ith her

husband, specifically inquiring as to how they related to one

another.

13. In the summer of 1999, K.C. traveled by car to Canada

to visit her husband's family. For K.C., the trip to Canada was

stressful and while there, she was in a lot pain. Be cause of

the pain she was experiencing, K.C. called Respondent's office

while she was still out - of - town to schedule an appointment for

an adjustment upon her return to Sarasota and to request that

one of her prescriptions be refilled.

14. After K.C. retur ned from the trip to Canada, on the

morning of August 13, 1999, she went to Respondent's office for

her scheduled appointment for an adjustment. When K.C. arrived

at Respondent's office, she was in a lot of pain and began to

cry. K.C. told the nurse or m edical assistant that she was in a

lot of pain and had had a "bad trip to Canada." The nurse then

escorted K.C. to an examination room. When Respondent came into

to examination room, K.C. was sobbing and could hardly talk.

Respondent asked K.C. to expla in why she was so upset.

Respondent proceeded to do an adjustment and, again, asked K.C.

why she was so upset. K.C. described her feelings to

Respondent, who then told K.C. that he used to counsel with

patients, that he had helped a girl just like her, a nd that he

could help her if she were willing to come back to the office

and talk with him. After K.C. agreed to come back and talk to

Respondent, he asked K.C. how he could reach her. In response,

K.C. gave Respondent her pager number.

15. After K.C.' s morning appointment on August 13, 1999,

Respondent contacted K.C. on her pager and asked if she had made

arrangements for her sons to be taken care of so that she could

come back to the office to talk with him. K.C. told Respondent

that she had made arr angements for her sons and agreed to return

to Respondent's office that afternoon.

16. When K.C. returned to Respondent's office on the

afternoon of August 13, 1999, Beverly Carrington (Beverly), a

medical assistant in Respondent's office, was vacuuming the

office. At Respondent's direction, Beverly took K.C. to an

examination room. Several minutes later Respondent came into

the examination room and told K.C. that he had to make some

calls and that he would be back in a few minutes. Respondent

gave K.C . a sandwich that he said he had left over from lunch.

After Respondent gave K.C. the sandwich, he left the examination

room, closing the door behind him.

17. Respondent eventually returned to the examination room

and sat in a chair next to the chair in w hich K.C. was sitting.

Respondent began asking K.C. questions about herself, similar to

questions that she had been asked by counselors or

psychologists. While Respondent was talking to K.C., Beverly

knocked on the door of the examination room and told R espondent

that she had finished vacuuming the office. Respondent

indicated to Beverly that she could go home and soon thereafter,

Petitioner heard Beverly leave the building. 1

18. After Beverly left the office, Respondent continued to

ask K.C. questio ns for the next 15 or 20 minutes. Respondent

then asked K.C. to get up from her chair, face the mirror in the

room, and look in the mirror. K.C. felt uncomfortable looking

in the mirror, so she kept her head down. Respondent then put

his hands on K.C.'s face and held her face up so that she was

looking in the mirror. While doing this, Respondent asked K.C.,

"Don't you know you're beautiful?" Respondent placed his hands

on K.C.'s shoulders and brushed his lips against her neck.

Respondent began rubbing or massaging K.C.'s neck and while

doing so told K.C. that she was "real tight in [her] neck" and

that he would like to work on her neck again and see if he could

loosen it up and help her relax. Respondent then led her to the

examination table and "proc eeded to rub [her] neck and then he

started to take off [her] clothes."

19. While on the examination table, Respondent helped K.C.

take off her shirt, shorts, bra, and shoes and the only

remaining clothing that she had on was her underwear. After her

cl othes were removed, K.C. presumed Respondent would cover her

with a towel or give her a robe, but he did not provide K.C.

with any covering. Instead, Respondent sat behind K.C.,

massaged her neck, and talked to her "soothingly" for about ten

minutes. Res pondent then took his hands and rubbed her arms and

then moved his hands to her breasts, and then down to her waist

and towards her panties. When Respondent moved toward K.C.'s

panties, she would "tense up" and then Respondent would "start

rubbing up the top part of her again." Respondent's hands again

went toward her underwear and he "put his hand to go under

[K.C's] underwear." K.C. was nervous about what was going on

and told Respondent that she was uncomfortable.

20. After K.C. told Respondent that she was uncomfortable,

he acknowledged that she seemed uncomfortable. Respondent then

handed K.C. her clothes, assisted her in sitting up on the

examination table, and sat on the table while K.C. dressed

herself. After talking to Respondent for about fi ve minutes,

K.C. left the doctor's office with a worse headache, feeling

distraught.

21. K.C. next saw Respondent a few days later, on a Monday

or Tuesday, for an adjustment for a headache and pain.

Respondent performed an adjustment on K.C. that day. During

this appointment, Respondent, again, told K.C. that he wanted to

help and counsel her. He told K.C. about an upcoming gun show

and stated that they could talk while driving to the gun show.

22. Later that week, Respondent paged K.C. and asked her

to come to his office. In response to Respondent's request,

K.C. went to Respondent's office. Once there, Respondent took

K.C. to an examination room and talked to her again about the

gun show. Respondent again told her that he would like for her

to go to the gun show with him so that they could have time to

talk. K.C. was in Respondent's office that day about ten

minutes and did not receive a treatment.

23. A few days later, on Saturday, K.C. met Respondent at

his office to go the gun show. When sh e got there, Respondent

recommended that she leave her car at the office and ride in his

Toyota 4 - Runner so that they could talk. Respondent stated that

he and K.C. were going somewhere in Palmetto, Florida, but they

actually ended up at the Manatee Civic Center. While Respondent

was driving to the gun show, he told K.C. that he hoped that he

was not mistaken as to the dates of the gun show. In fact, when

Respondent and K.C. arrived at the Manatee Civic Center, there

was no one there. Nevertheless, Resp ondent pulled his car into

a space in the parking lot on the side of the building.

Respondent left the car running and took off his seat belt as he

talked to K.C. At some point, Respondent kicked his shoes off

and loosened his pants and/or pulled them do wn, reached over

toward K.C., took off her seat belt, told K.C. to get more

comfortable, and adjusted her power seat in his Toyota 4 - Runner

to lean back more. Respondent then touched K.C.'s genitals and

proceeded to get on top of her and have intercourse. While on

top of her, Respondent pointed out that there were police cars

in the back of the parking lot. Once Respondent pointed out the

police cars, K.C. observed two or four police cars in the

parking lot. Even though there were no policemen in the ca rs,

K.C. expressed concern about the police cars to Respondent.

Respondent told K.C. that she should not worry because the

windows in his vehicle were tinted. Respondent and K.C. were in

the parking lot about 20 minutes, although the intercourse was

only three to five minutes. After the intercourse, Respondent

put his clothes back on or pulled his pants up and drove back to

his office. This was the first time that Respondent and K.C.

had intercourse.

24. A few days later, K.C. and Respondent engaged i n

sexual activity in Respondent’s vehicle during lunch while they

drove to Marina Jack’s. Respondent picked up lunch at the

hospital and then returned to the parking lot of his office,

where K.C. met him. K.C. left her car in the parking lot and

got in R espondent's Toyota 4 - Runner. Respondent gave K.C. her

lunch and then "fingered" her while she ate her lunch as he

drove to Marina Jack's.

25. During the period between August and October 1999,

K.C. went to Respondent's house on Siesta Key. The house wa s in

a gated community, and in order to gain entry, K.C. told the

guard at the gate that she was going to Respondent's house and

would give the guard her name or another name that Respondent

had told her to use. At other times, K.C. would follow

Responden t through the gate in her car. Some of these visits

were on weekdays during Respondent's lunch break. During some

of those visits, K.C. and Respondent would talk and have

intercourse. K.C. and Respondent had intercourse at

Respondent's house about ten t imes.

26. One Saturday between August and October 1999, K.C.

went to Respondent's house after he invited her to come out and

talk to him and go to the beach. That day Respondent met K.C.

somewhere in town and drove her to his house. When they arrived

a t Respondent's house, K.C. took out a bathing suit and went

upstairs to change. It is unclear whether K.C. and Respondent

had intercourse or engaged in any sexual activity on this day.

27 . K.C. contemporaneously reported the sexual

relationship with Res pondent to her husband and to a minister

who had known and counseled her before she met Respondent. K.C.

told her minister that the sexual activities with Respondent had

occurred in Respondent's office, vehicle, and home.

28. K.C. and Respondent had intercourse a couple of times

at the home of a friend of Respondent's, Carole, that was on

Tangerine Street and at the home of one of Respondent's friends,

Jack Kentish.

29 . One Sunday morning in late September, K.C. went to

Respondent’s office. 2 While there, she went into an examination

room to change clothes so that she would have attire appropriate

to accompany Respondent to a gun show. About that time, K.C.'s

husband showed up at Respondent's office, knocked on the office

door, expressed his disple asure at the fact K.C. was there, and

had a verbal confrontation with Respondent. K.C.'s husband

stopped at Respondent's office after he saw his wife's car

parked there.

30 . The incident described in paragraph 29, led to

Respondent sending a letter date d September 28, 1999, to K.C.,

advising her that his professional relationship with her would

terminate within 30 days. The reason for the 30 days was to

allow K.C. time to find another physician.

31. In October 2000, K.C. was admitted to Sarasota

Memor ial Hospital suffering from major depression, Fioricet

dependence, and chronic pain. At or near the time of her

admission and at this proceeding, K.C. acknowledged that she had

some loss of memory surrounding the events related to the

three - month period in which Respondent engaged in improper

sexual conduct with her. 3

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter pursuant to

Sections 120.569 and 120.57, Florida Statutes.

33. Pursuan t to Subsection 459.015(2), Florida Statutes,

t he Board of Osteopathy is empowered to revoke, suspend or

otherwise discipline the license of an osteopathic physician for

violating the following provisions of Subsection 459.015(1)(l),

Florida Statutes:

Exer cising influence within a patient -

physician relationship for purposes of

engaging a patient in sexual activity. . . .

34. Section 459.0141, Florida Statutes, provides:

The osteopathic physician - patient

relationship is founded on mutual trust.

Sexual misconduct in the practice of

osteopathic medicine means violation of the

osteopathic physician - patient relationship

through which the osteopathic physician uses

said relationship to induce or attempt to

induce the patient to engage, or to engage

or attem pt to engage the patient, in sexual

activity outside the scope of the practice

or the scope of generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of

osteopathic medicine is prohibited.

35. Subsection 459.015(1) (bb), Florida Statutes (1999),

now Subsection 459.015(1)(pp), Florida Statutes, provides that a

licensed osteopathic physician shall be disciplined for

"[v]iolating any provision of this chapter. . . ."

36. Disciplinary licensing proceedings are penal in

nature. State ex rel. Vining v. Florida Real Estate Commission ,

281 So. 2d 487 (Fla. 1973). Thus, the burden of proof is on

Petitioner to prove the allegations in the Administrative

Complaint by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987); Department of

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

932, 935 (Fla. 1996).

37. The "clear and convincing" standard requires:

[T]hat 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 explicit and

the witnesses 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 f irm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Inquiry Concerning Davey , 645 So. 2d 398, 404 (Fla. 1994),

quoting, with approval from Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983). The findings in this case were made

based on the Ferris standard.

38. Count One of the Administrative Complaint alleged that

during the period of August 1999 through October 1999,

Respondent violated Subsection 459.015(1)(l), Florida Statutes,

by exerc ising influence within a physician - patient relationship

for purposes of engaging K.C. in sexual activity. The evidence

established that Respondent, in addition to providing treatment

for K.C.'s physical condition, repeatedly offered to help her

with her e motional problems. The evidence established that

Respondent offered to provide this help by talking and

counseling with K.C., typically after office hours, at lunch

time, or on the week - end, with such "talk" sessions occurring at

his office, in his vehicl e, or at his home. Petitioner has

established that during some of these times, Respondent engaged

in sexual activity with K.C. The evidence has established by

clear and convincing evidence that Respondent exercised

influence within a physician - patient re lationship for purposes

of engaging K.C. in sexual activity.

39. Count Two alleges that Respondent violated

Section 459.0141, Florida Statutes, by engaging in a sexual

activity outside the scope of practice or the scope of generally

accepted examination or treatment during the period of

August 1999 through October 1999, while treating K.C. The

evidence established that Respondent engaged in a relationship

with K.C. from August 1999 though or about October 1, 1999, and

that during this period of time, he wa s treating K.C. The

evidence established that on or about August 13, 1999,

Respondent engaged in a sexual activity with K.C. in his office

and that on at least two other occasions, Respondent engaged in

sexual activity with K.C. in his vehicle. The evide nce

established by clear and convincing evidence that during the

time in question, Respondent violated Section 459.0141, Florida

Statutes.

40. The foregoing violations constitute grounds for

disciplinary action pursuant to Subsection 459.015 (1)(bb),

Flori da Statutes (1999), which allows discipline to be imposed

for violating any provision of Chapter 459, Florida Statutes.

41. The range of penalties for a violation of Subsection

459.015(1)(l), Florida Statutes, are from a one - year probation

to revocation an d an administrative fine up to $5,000.00.

Rule 64B15 - 19.002(13), Florida Administrative Code (as amended

February 2, 1998).

42. The range of penalties for a violation of Subsection

459.015(1)(bb), Florida Statutes (1999), now Subsection

459.015(1)(pp), F lorida Statutes, are from probation to

revocation and an administrative fine up to $5,000.00.

Rule 64B15 - 19.002(29), Florida Administrative Code (as amended

February 2, 1998).

43. Here, Petitioner has recommended a penalty of a

one - year suspension and an administrative fine of $2,000.00.

This recommended penalty is within the prescribed range of

penalties for the violations prescribed by Rule 64B15 - 19.002,

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusi ons of

Law, it is

RECOMMENDED that the Department of Health, Board of

Osteopathic Medicine, enter a final order finding that

Respondent violated Subsection 450.015(1)(l) and

Section 459.0141, Florida Statutes, and Subsection

459.015(1)(bb), Florida Statut es (1999), now 459.015(1)(pp),

Florida Statutes, and suspending his license to practice

osteopathic medicine in the State of Florida for one year and

imposing an administrative fine of $2,000.00.

DONE AND ENTERED this 5th day of August, 2003, in

T allahassee, Leon County, Florida.

S

___________________________________

CAROLYN S. HOLIFIELD

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 5th day of August, 2003.

ENDNOTES

1/ Beverly Carrington, Respondent's medical assistant for eight

years, testified that she work ed part - time and was not always in

the office to see patients. However, she did not specify which

days and hours she worked in Respondent's office.

2/ There was conflicting testimony as to whether K.C. "happened

by" Respondent's office or was invited th ere by Respondent.

K.C. testified that she went to Respondent's office after he

paged her that Sunday while she was in church. When she

contacted him, he told her that he had a friend at his office

and invited her to go to a gun show with them. Responde nt

testified that K.C. "happened by the office" and, upon learning

Respondent and his friend were going to a gun show, asked if she

could go.

3/ K.C.'s memory may have been affected by some of the

medication she was taking, the amount of time that has el apsed

since the events occurred, the frequency of the sexual

activities, and the number of locations these activities

occurred. For example, K.C. could not recall when she last had

intercourse with Respondent, that is whether it was before or

after Respon dent discharged her as a patient. K.C. testified

that she and Respondent had intercourse in an upstairs room and

on the balcony of the home of Respondent's friend, Jack Kentish.

In fact, Mr. Kentish's house is a one - story house and does not

have a balcon y. K.C. testified that she and Respondent had

intercourse at the house of Respondent's friend, Carole, which

was located on Tangerine Street in Sarasota, Florida. However,

when K.C.'s husband investigated the matter, he found that the

house on Tangerine Street that had been identified by K.C. as

Carole's house, was actually owned by Andrew Synder, who has

lived in that house for more than eight years and does not know

Carole. No evidence was presented as to how much time elapsed

between the sexual activi ties of Respondent with K.C. and the

time K.C. apparently showed her husband the house she believed

belonged to Respondent's friend, Carole. However, K.C.'s

unwavering credible testimony was that she and Respondent had

intercourse at a house on Tangerine Street.

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Paul Watson Lambert, Esquire

1203 Governor's Square Boulevard

Magnolia Centre, Suite 102

Tallahassee, Florida 323 11 - 2960

William H. Buckhalt, Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C06

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 C06

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.