03-000056PL Department Of Health, Board Of Medicine vs. Jose Anibal Cruz, M.D. Status: Closed Recommended Order on Thursday, April 15, 2004.

Summary: Respondent had sexual relationship with a patient. Recommend revocation of Respondent`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0056PL

)

JOSE ANIBAL CRUZ, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, in Miami, Florida, on

April 10 and 11, 2003, and January 28, 2004.

APPEARANCES

For Petitioner: Kim M . Kluck, Esquire

Joy L. Doss, Esquire

Trisah D. Bowles, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother

& Sleet, P.A.

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Jose Anibal

Cruz, M.D., committed the violations alleged in an

Administrative Complaint filed by Petition er, the Department of

Health, on December 30, 2002, and, if so, what disciplinary

action should be taken against him.

PRELIMINARY STATEMENT

On or about December 30, 2002, the Department of Health

filed a four - count Administrative Complaint against Jose Ani bal

Cruz, M.D., a Florida - licensed physician, before the Board of

Medicine. On or about January 8, 2003, Dr. Cruz, through

counsel, mailed a Request for Formal Hearing, indicating that he

disputed all material facts alleged in the Administrative

Complaint , except those pertaining to jurisdiction and

licensure, and requesting a formal administrative hearing

pursuant to Section 120.569(2)(a), Florida Statutes (2002). On

January 9, 2003, the matter was filed with the Division of

Administrative Hearings, with a request that the case be

assigned to an administrative law judge. The matter was

designated DOAH Case No. 03 - 0056PL, was initially assigned to

Administrative Law Judge Claude B. Arrington, and was later

transferred to the undersigned.

The final hearing was scheduled by Notice of Hearing

entered January 24, 2003, for April 10 and 11, 2003. Shortly

before commencement of the final hearing, Petitioner Filed

Petitioner's Motion to Preclude Respondent's Testimony or Motion

in Limine, along with a Memorandum in Support of Motion to

Preclude or Motion in Limine. In this Motion Petitioner sought

an order prohibiting Respondent from testifying at the final

hearing due to the assertion of his right to remain silent,

guaranteed by the Fifth Amendment to the Unite d States

Constitution, and Article I, Section 9 of the Florida

Constitution (hereinafter referred to as the "Fifth Amendment

Privilege" or "Privilege"), on some, but not all, of the

questions posed by Petitioner during the portion of Respondent's

depositio n taken on March 25, 2003. Petitioner sought the

preclusion of Respondent's testimony as a sanction, relying upon

Florida Administrative Code Rule 28 - 106.206.

When the final hearing commenced on April 10, 2003, it was

also learned that Petitioner would re quire additional time to

pursue discovery due to the fact that Respondent had provided

newly discovered medical records pertinent to this case just

before the commencement of the hearing. The delay in the

completion of the final hearing created an opportu nity: (1) to

review each of the questions for which Respondent had asserted a

Fifth Amendment Privilege during his deposition and determine

whether the Privilege was properly asserted; (2) to give

Petitioner an opportunity to have Respondent answer any

qu estions for which the Fifth Amendment Privilege was improperly

asserted; and (3) to then decide whether any sanctions should be

imposed on Respondent.

The March 25, 2003, portion of Respondent's deposition was

reviewed and, on April 18, 2003, an Order Conc erning

Petitioner's Motion to Preclude Respondent's Testimony or Motion

in Limine was entered. In this Order, the parties were informed

of the legal conclusions 1 reached by the undersigned concerning a

respondent's right to assert a Fifth Amendment Privil ege in

administrative proceedings, the specific questions for which

Respondent had asserted the Fifth Amendment Privilege were

identified, and, based upon the legal conclusions explained in

the Order, the Respondent was informed that he must answer the

que stions or, if he refused to do so, "appropriate sanctions may

be imposed." A ruling on Petitioner's Motion to Preclude

Respondent's Testimony or Motion in Limine was reserved until

Respondent had had an opportunity to respond to the questions

for which th e Fifth Amendment Privilege had been asserted and

any reasonable follow - up questions by Petitioner. 2

In response to the April 18, 2003, Order Respondent filed

Respondent's Motion for Stay Regarding the April 18, 2003 Order

Concerning Petitioner's Motion to Preclude Respondent's

Testimony or Motion in Limine. Respondent represented that he

intended to file an interlocutory appeal of the April 18, 2003,

Order and, therefore, requested that the case be stayed pending

that appeal. Petitioner filed Petitioner' s Response to

Respondent's Motion for Stay Regarding the April 18, 2003, Order

indicating that Petitioner had no objection to a stay of those

matters which were directly impacted by the Order.

On April 30, 2003, an Order Granting, in Part, Respondent's

Mot ion for Stay was entered. The Motion was granted "to the

extent agreed to by Petitioner." On September 26, 2003, the

District Court of Appeal of Florida, Third District, issued an

order denying Respondent's petition for writ of certiorari.

After receivin g input from the parties, an Amended Notice

of Hearing was entered scheduling the remainder of the final

hearing for January 28 and 29, 2004.

Prior to the commencement of the final hearing, official

recognition was taken of Florida Administrative Code Rule s 59R -

8.001 (Rev. 6/97), 64B8 - 8.001 (Rev. 5/98, Rev. 2/00, and

Rev. 2.01), and 64B8 - 9.008, and Section 458.329, Florida

Statutes.

At the final hearing Petitioner presented the testimony of

Herb Graner, M.R., James Wright, Luis Villa, Martha Garcia,

Mercede s Morel, Michele Flores, and Jose A. Melendez.

Petitioner's Exhibits 1 through 9 were admitted. Petitioner's

exhibits included the deposition testimony of Oscar Santa Maria,

taken August 17, 2001, and the deposition testimony of George

Joseph, M.D. Resp ondent presented the testimony of M.R.,

Fancisco J. Pages, M.D.; Aurora Thomas; Ms. Morel; Lyudmila

Litvinova; Geroge E. Lopez; Julian Nodarse, M.D.; and

Ms. Flores. Respondent's Exhibits 1 through 3, 5 through 8, and

12 through 19 were admitted. Respond ent's exhibits included the

deposition testimony of Manuel Dominguez, M.D., taken April 7,

2003; the deposition testimony of Dr. Joseph, taken March 14,

2003; the deposition testimony of Daisy Quintanilla, taken

April 24, 2003; and the deposition testimony of Diana Baralt,

M.D., taken Aril 24, 2003. Respondent's Exhibit 4 was marked

for identification purposes, but not offered. Respondent’s

Exhibits 9 through 11 were proffered. Finally, four Joint

Exhibits were admitted, including the deposition testimon y of

Mr. Villa, taken March 27, 2003.

Respondent also intended to offer the testimony of several

witnesses who, it was concluded, would provide testimony

cumulative to some of Respondent's witnesses who did testify.

Rather than require that these witnesse s appear, Respondent made

a proffer of their testimony which, it was agreed, would be

treated as if they had actually testified.

At the conclusion of the final hearing of this matter, it

was agreed that all exhibits filed in this matter would be

considered confidential due to the inclusion of patient

identifying information. All of those exhibits, which will be

released to Petitioner with this Recommended Order, have been

treated as confidential by the Division of Administrative

Hearings and have not been disclosed.

The two - volume Transcript of the portion of the final

hearing conducted on April 10 and 11, 2003, was filed on

December 1, 2003, and the one - volume Transcript of the portion

of the final hearing conducted on January 28, 2004, was filed on

March 8, 2004. The parties, pursuant to agreement, therefore,

had until March 19, 2004, to file proposed recommended orders.

Both parties timely filed Proposed Recommended Orders, which

have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving physicians li censed to

practice in Florida.

2. Respondent, Jose Anibal Cruz, M.D., is, and was at the

times material to this matter, a physician licensed to practice

medicine in Florida, having been licensed in Florida since 1975.

His license number is 0025019.

3. D r. Cruz received his medical degree in October 1967.

He has been practicing medicine for a period of 36 years,

including his time in training.

4. During his career, Dr. Cruz has served as Chief of

Geriatric Psychiatry at South Shore Hospital, Miami, Flor ida,

and as Medical Director of the Psychiatric Out - Patient

Rehabilitation Program with South Shore Hospital and the

University of Miami.

B. Dr. Cruz's Practice .

5. At the times material to this matter, Dr. Cruz

specialized in the practice of general psy chiatry. 3

6. At the times material to this matter, Dr. Cruz

maintained an office at either 8740 North Kendall Drive, Miami,

Florida, or 1540 Washington Avenue, Miami Beach, Florida. 4

C. Patient M.R.

7. On or about January 4, 1994, Dr. Cruz began providi ng

care to M.R., a female, who was born on May 21, 1962. When she

began seeing Dr. Cruz for treatment, she was 31 years of age.

When M.R. discontinued receiving treatment from Dr. Cruz on or

about August 16, 2001, she was 39 years of age.

8. When M.R. f irst presented to Dr. Cruz, she had a

history of bipolar disorder and manic - depressive disorder. M.R.

was considered disabled due to her bipolar disorder. She

complained of symptoms indicative of depression. Dr. Cruz

diagnosed M.R. with manic - depressive illness, in remission.

9. Dr. Cruz treated M.R. for manic - depression from January

1994 until August 2001, seeing her at least once a month for

pharmacological management 5 and brief reality - oriented therapy

sessions.

10. From the beginning of Dr. Cruz's treatment of M.R., he

began making inappropriate, flirtatious comments to her,

including comments about her hair and physical appearance.

11. Dr. Cruz also began to hug M.R. and on several

occasions, he became sexually aroused to a point where M.R.

could feel his erect penis.

12. Dr. Cruz eventually began to ask M.R. to bring him

pictures of herself wearing a bathing suit or in the nude.

13. After Dr. Cruz moved his office to the Miami Beach

location, Dr. Cruz began to masturbate in front of M.R. during

her visits.

14. Eventually, Dr. Cruz asked M.R. to perform oral sex on

him during her visits, a request that she obeyed.

15. On five occasions, Dr. Cruz hospitalized M.R. in the

psychiatric unit at Cedars Medical Center (hereinafter referred

to as the "P sychiatric Unit"), where Dr. Cruz regularly

performed rounds.

16. Patients in the Psychiatric Unit were monitored on a

regular basis. Staff conducted rounds with each patient at 15 -

minute intervals, beginning on the hour. The nursing station

also had an audio monitoring system, which allowed the nurses to

listen in on a patient's room. Only one room could be monitored

at a time, however. 6

17. When a physician was with a patient in the Psychiatric

Unit, staff generally would not interrupt the physician,

although the door to the patient's room was usually left open in

case the physician has any difficulty with the patient.

18. Each patient in the Psychiatric Unit had a private

room, with a private bathroom. There was a door on the room and

the bathroom, but neither could be locked from the inside. If a

patient was in the bathroom when staff made rounds, staff would

knock on the door, but not open it if the patient responded.

19. During some of the times when M.R. was hospitalized in

the Psychiatric Uni t, Dr. Cruz would telephone her, tell her

when he would be making rounds, and tell her to be in the shower

bathing when he arrived. She would comply with his directions

and when he arrived, he would enter the bathroom where he would

masturbate while watch ing M.R. bathing.

20. Dr. Cruz would also masturbate in front of M.R. while

visiting her in the Psychiatric Unit at times other than when

she was instructed to be in the shower.

21. Dr. Cruz's inappropriate behavior eventually

progressed to having sexual intercourse with M.R. Dr. Cruz, in

order to facilitate their sexual relationship, told M.R. to

start coming in as the last patient of the day. 7 After her

appointment, M.R. would leave the office, Dr. Cruz would pick

her up around the corner from the off ice, and he would take her

to the Starlite East Motel (hereinafter referred to as the

"Starlite").

22. On other occasions, Dr. Cruz would have M.R. wait for

him at a Winn - Dixie grocery store (hereinafter referred to as

the "Grocery Store") located on Nort hwest 12th Avenue, close to

Cedars Medical Center. On these occasions, Dr. Cruz would pick

up M.R. and take her to the Starlite.

23. The Starlite, located at 135 Southwest 8th Street,

Miami, Florida, is a motel where rooms may be rented by the hour

or lo nger periods of time, including overnight. Greater than

three - fourths of the Starlite's guests rent by the hour.

24. On those occasions when Dr. Cruz took M.R. to the

Starlite, he would usually park his car in the motel parking

lot, leave her in his car, register for a room, using a

fictitious name, 8 and then park his car nearer the room.

25. While at the Starlite, Dr. Cruz and M.R. would engage

in sexual intercourse.

26. On one occasion, after engaging in sexual intercourse

at the Starlite, Dr. Cruz ga ve M.R. two twenty - dollar bills

which he told her to use to buy herself something. 9 M.R.

declined taking the money.

27. Dr. Cruz. engaged in sexual intercourse with M.R. on

as many as 25 to 30 occasions.

D. Surveillance of Dr. Cruz and M.R.

28. At some time during 2001, M.R. confessed her sexual

relationship with Dr. Cruz to a friend, who suggested that what

Dr. Cruz was doing was wrong and that she should sue him. M.R.

took her friend's advice, selected a law firm out of the phone

book, and contacted an attorney.

29. After telling the attorney about her sexual

relationship with Dr. Cruz, the attorney hired a private

investigator to conduct video surveillance of M.R. and Dr. Cruz.

30. The private investigator arranged a meeting with M.R.

during August 2001 to discuss the surveillance. M.R. met with

two investigators and discussed her relationship with Dr. Cruz

and their routine. It was decided that a rendezvous would be

arranged with Dr. Cruz on August 16, 2001, a date on which M.R.

had an appointmen t to see Dr. Cruz to renew a medication

prescription. It was expected that M.R. would leave the office

and that Dr. Cruz would then pick her up around the corner and

take her to the Starlite.

31. The investigators were positioned outside Dr. Cruz's

offic e on August 16, 2001, at the time of her appointment.

Dr. Cruz, however, told M.R. to telephone him later to make

arrangements to meet the following day, instead of going to the

Starlite the day of her appointment. When she told him she did

not have any minutes on her cellular telephone, 10 Dr. Cruz, as he

often had before, gave her $50.00 to purchase minutes to be used

on the phone. 11

32. Upon leaving the office, M.R. went to a nearby store

where she purchased cellular telephone minutes. One of the

privat e investigators, who was expecting M.R. to be picked up by

Dr. Cruz and was, therefore, watching the office that day,

followed M.R. When he saw her go into the store, he followed

her in. The investigator approached M.R. and she told him that

Dr. Cruz had told her that he could not take her to the Starlite

that day.

33. M.R. and the investigator left the store and went to

lunch, where they were joined by the second investigator. While

at lunch, Dr. Cruz called M.R. on her cellular phone and told

her that he would pick her up at the Grocery Store the following

day, August 17, 2001. 12

34. After the telephone call with Dr. Cruz ended, M.R.

informed the investigators that she had agreed to be picked up

the following day at the Grocery Store.

35. On August 17 , 2001, the two investigators positioned

themselves in the Grocery Store parking lot where they could see

M.R., who was sitting on a bench in front of the store. They

video recorded M.R. giving a prearranged signal when Dr. Cruz

first entered the parking lot, stopping to pick up M.R., and

then left. The investigators lost Dr. Cruz in traffic, so they

went directly to the Starlite, where they next recorded

Dr. Cruz's automobile, with Dr. Cruz and M.R. in it, entering

the parking lot.

36. Upon arriving at the Starlite, Dr. Cruz parked his

car, leaving M.R. in it, and proceeded to the office. Upon

returning from the office, getting into his car, starting the

engine, and placing the car in reverse, the investigators drove

up behind his car, blocking his exit . One of the investigators

went to the passenger side of Dr. Cruz's car, took M.R. out, and

then put her in the investigators' car, 13 and they then departed.

E. The Department's Administrative Complaint and

Dr. Cruz's Request for Hearing .

37. On Dece mber 30, 2002, after investigating M.R.'s

allegations, the Department filed a four - count Administrative

Complaint against Dr. Cruz alleging that he had: (a) exercised

influence within a patient - physician relationship for purposes

of engaging a patient in sexual activity in violation of Section

458.331(1)(j), Florida Statutes (Count One); (b) violated the

express prohibition against sexual misconduct set out in Section

458.329, Florida Statutes, and Florida Administrative Code Rule

64B8 - 9.008 (Count Two); ( c) failed 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 in violation of Section 458.331(1)(t),

Florida Statutes (Count Three); a nd (d) failed to keep written

medical records justifying the course of treatment of M.R., in

that his notes are partially illegible and/or are cursory and

generic, in violation of Section 458.331(1)(m), Florida Statutes

(Count Four).

38. On or about Janua ry 8, 2003, Dr. Cruz, through

counsel, mailed a Request for Formal Hearing to the Department,

indicating that he disputed all material facts alleged in the

Administrative Complaint, except those pertaining to

jurisdiction and licensure, and requesting a fo rmal

administrative hearing pursuant to Section 120.569(2)(a),

Florida Statutes (2002).

39. On January 9, 2003, the matter was filed with the

Division of Administrative Hearings, with a request that the

case be assigned to an administrative law judge. Th e matter was

designated DOAH Case No. 03 - 0056PL, was initially assigned to

Administrative Law Judge Claude B. Arrington, and was later

transferred to the undersigned.

F. Counts One through Three; Sexual Misconduct .

40. The first three counts of the Admin istrative Complaint

are specifically alleged to be based upon the following facts:

a. Demanded oral sex from Patient M.R.

under threat of withholding her

prescriptions;

b. Engaged in sexual intercourse with

Patient M.R.;

c. Masturbated in Patient M.R. 's presence;

d. Invited Patient M.R. to engage in sexual

relations with him and a third party;

e. Asked for naked photographs of Patient

M.R.; and/or

f. Groped Patient M.R.'s breasts and groin

in his office during sessions.

41. All of these factual allegations, except paragraphs

a., d., and f. have been proved.

42. Physicians are responsible for maintaining the

appropriate physician - patient relationship, a responsibility

each physician is responsible for understanding. This

relationship involves " boundaries" which the physician should

understand are not to be crossed. 14 Engaging in the activities

listed in finding of fact 40 b. through c. and e. with M.R.

constituted the exercise of influence over M.R. within the

patient - physician relationship for the purpose of engaging a

patient in sexual activity.

ust plays a significant part in the physician -

patient relationship, and especially in the psychotherapist -

patient relationship. According to George M. Joseph, M.D.,

whose testimony has been cred ited, trust "plays a very important

role, probably a prime role, primal important role. . . ."

44. There is also a difference in the "power" of the

psychotherapist and the patient. While each has some power,

according to Dr. Joseph, the

doctor, traditio nally, is viewed as an

individual with, obviously, more of the

power.

He is the treating person. He is the one

getting paid. He is the one with the

knowledge and the experience. And he is the

one directing the treatment.

In addition to that, over time in

psychotherapy, he acquires the power of the

patient's transference, which often pictures

him or her in a sort of parental role.

45. Because of the power a psychotherapist has over a

patient, that power can be exploited to influence a patient to

c ross the sexual boundary which the psychotherapist should

maintain. When a psychotherapist crosses that sexual boundary

and exploits a patient, the trust necessary to maintain a proper

psychotherapist - patient relationship is destroyed, the patient

may bec ome traumatized, and a patient with depressive illnesses

may experience an exacerbation of psychotic or manic symptoms.

46. In this matter, due to the activities described in

finding of fact 40 b. through c. and e., Dr. Cruz violated the

proper psychother apist - patient relationship, abused his power

over patient M.R., exploited her for his own pleasure, destroyed

her trust in him, and caused her emotional distress, nightmares,

sleeplessness, confusion, and depression.

47. Dr. Cruz's sexual involvement with M.R. constituted

the exercise of influence within a physician - patient

relationship for purposes of engaging a patient in sexual

activity and constituted sexual misconduct in the practice of

medicine.

48. Dr. Cruz's sexual involvement with M.R., as found in

finding of fact 40 b. through c. and e., constituted 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

circumstan ces.

49 As to paragraph a., supra , while the evidence proved

that Dr. Cruz had M.R. visit his office once a month in order to

obtain a refill of the medications he prescribed for her, the

evidence failed to prove that Dr. Cruz threatened to withhold

her p rescriptions if she refused to perform oral sex on him. 15

G. Count Four; Dr. Cruz's Medical Records .

50. According to Dr. Joseph, whose opinion 16 with regard to

Dr. Cruz's medical notes is accepted:

The physician's notes are at best only

partially legible to this reviewer. The

notes appear cursory, and generic. They

continually repeat terms such as:

"Depressed, anxious, tense, despondent,

dejected, hopeless, low self - esteem, sad,

helplessness. There appears to be little

reference in the notes to curren t life

issues, psychodynamics or specific

medication effects.

Deposition Exhibit 2 to Respondent's Exhibit 8.

CONCLUSIONS OF LAW

A. Jurisdiction .

51. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding a nd of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

B. The Charges of the Administrative Complaint .

52. In its Administrative Complaint, the Department has

alleged that Dr. Cruz: (a) exercised influence within a

patie nt - physician relationship for purposes of engaging a

patient in sexual activity in violation of Section

458.331(1)(j), Florida Statutes (Count One); (b) violated the

express prohibition against sexual misconduct set out in Section

458.329, Florida Statutes , and Florida Administrative Code Rule

64B8 - 9.008 (Count Two); (c) failed 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 in viola tion of Section 458.331(1)(t),

Florida Statutes (Count Three); and (d) failed to keep written

medical records justifying the course of treatment of M.R., in

that his notes are partially illegible and/or are cursory and

generic, in violation of Section 458. 331(1)(m), Florida Statutes

(Count Four).

53. Section 458.331(1), Florida Statutes, sets out grounds

for the discipline of physicians. In pertinent part, the

following acts constitute grounds for disciplinary action:

(j) Exercising influence 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 activity with his or her physician.

. . . .

(m) Failing to keep le gible, as defined

by department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or admi nistered; and

reports of consultations and

hospitalizations.

. . . .

(t) . . . 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 s imilar 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 lawfu lly issued

subpoena of the department.

54. In support of the allegation that Dr. Cruz violated

Section 458.331(1)(x), Florida Statutes, the Department alleged

that he violated Section 458.329, Florida Statutes, and Florida

Administrative Code Rule 64B8 - 9 .008.

C. The Burden and Standard of Proof .

55. The Department seeks to impose penalties against

Dr. Cruz through the Administrative Complaint that include

suspension or revocation of his license and/or the imposition of

an administrative fine. Therefore , the Department has the

burden of proving the specific allegations of fact that support

its charges by clear and convincing evidence. §458.331(3), Fla.

Stat. See also Department of Banking and Finance, Division of

Securities and Investor Protection v. O sborne Stern and Co. , 670

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

(Fla. 1987); and Pou v. Department of Insurance and Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

56. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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

t he firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 ( Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. The Department's Proof; Sexual Offenses .

57. The Department alleged, in support of Counts One

through Thre e, which relate to Dr. Cruz's sexual relationship

with M.R., that Dr. Cruz did the following:

a. Demanded oral sex from Patient M.R.

under threat of withholding her

prescriptions;

b. Engaged in sexual intercourse with

Patient M.R.;

c. Masturbated in P atient M.R.'s presence;

d. Invited Patient M.R. to engage in sexual

relations with him and a third party;

e. Asked for naked photographs of Patient

M.R.; and/or

f. Groped Patient M.R.'s breasts and groin

in his office during sessions.

58. All of th ese factual allegations, except paragraphs

a., d, and f. were proved by the Department clearly and

convincingly. 17

59. The acts which the Department alleged and proved that

Dr. Cruz committed with M.R. constitute a violation of Section

458.331(1)(j), Flori da Statutes, as alleged in Count One of the

Administrative Complaint. Dr. Cruz exercised influence over

M.R. within the physician - patient relationship for purposes of

engaging her in sexual activity.

60. The acts which the Department alleged and proved t hat

Dr. Cruz committed with M.R. also constitute a violation of

Section 458.331(1)(x), Florida Statutes, as alleged in Count Two

of the Administrative Complaint, in that his actions constitute

a violation of Section 458.329, Florida Statutes, and Florida

A dministrative Code Rule 64B8 - 9.008.

61. Section 458.329, Florida Statutes, provides the

following:

The physician - patient relationship is

founded on mutual trust. Sexual misconduct

in the practice of medicine means violation

of the physician - patient relat ionship

through which the physician uses said

relationship to induce or attempt to induce

the patient to engage, or to engage or

attempt to engage the patient, in sexual

activity outside the scope of the practice

or the scope of generally accepted

examinat ion or treatment of the patient.

Sexual misconduct in the practice of

medicine is prohibited.

62. Florida Administrative Code Rule 64B8 - 9.008, provides

the following, in pertinent part, with regard to "sexual

misconduct":

(1) Sexual contact with a pa tient is

sexual misconduct and is a violation of

Sections 458.329 and 458.331(1)(j), F.S.

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but it 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 professional setting or

outside of it;

2. May reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. May reasonably be interpreted by the

patient as being sexual.

. . . .

(3) Sexual behavior or involvement with a

patient excludes verbal or physical behavior

that is required for medically recognized

diagnostic or treatment purposes when such

behavior is performed in a manner that meets

the standard of care appropriate to the

diagnostic or treatment situation.

(4) The determination of when a person is

a patient for purposes of this rule is made

on a case by case basis with consideration

given to the nature, extent, and context of

the professional relationship between the

physician and the person. The fact that a

person is not actively rece iving treatment

or professional services from a physician is

not determinative of this issue. A person

is presumed to remain a patient until the

patient physician - relationship is

terminated.

. . . .

(7) A patient’s consent to, initiation

of, or pa rticipation in sexual behavior or

involvement with a physician does not change

the nature of the conduct nor lift the

statutory prohibition.

. . . .

63. The acts of sexual conduct which Dr. Cruz has been

proven to have committed with M.R. constitute p rohibited sexual

misconduct as prohibited and defined in Section 458.329, Florida

Statutes, and Florida Administrative Code Rule 64B8 - 9.008.

These violations, in turn, constitute a violation of Section

458.331(1)(x), Florida Statutes.

64. Finally, turnin g to the allegation that Dr. Cruz

violated Section 458.331(1)(t), Florida Statutes (hereinafter

referred to as the "Standard of Care"), as alleged in Count

Three of the Administrative Complaint, it is not clear whether

the determination of whether a physic ian has violated the

Standard of Care, which previously clearly required a finding of

fact to be made by this forum, is a question of law solely

within the province of the Board of Medicine (hereinafter

referred to as the "Board") to decide. By operation of

legislation enacted during the 2003 session of the Florida

Legislature, effective September 15, 2003, prior the conclusion

of the formal hearing in this case, "[t]he determination of

whether or not a licensee has violated the laws and rules

regulating t he profession, including a determination of the

reasonable standard of care, is a conclusion of law to be

determined by the board . . . and is not a finding of fact to be

determined by an administrative law judge." See Ch. 2003 - 416,

Laws of Florida 2003, Ch. 2003 - 416, at § 20 (amending Section

456.073(5), Florida Statutes (2002)).

65. The foregoing legislative change suggests that there

is no longer any need for an administrative law judge to decide

the factual question of whether a physician violated the

Standard of Care. The following change in Section

458.331(1)(t), Florida Statutes, however, suggests that such

findings are to be made:

. . . . A recommended order by an

administrative law judge or a final order of

the board finding a violation under this

paragraph shall specify whether the licensee

was found to have committed "gross

malpractice," "repeated malpractice," or

"failure to practice medicine with that

level of care, skill, and treatment which is

recognized as being acceptable under similar

conditions and circumstances," or any

combination thereof, and any publication by

the board must so specify.

This language specifically requires an administrative

law judge to decide the issue despite the language

quoted in paragraph 64.

66. Despite the confusion over the role of the

administrative law judge in a case such as this, where one of

the ultimate issues to be decided is whether a physician has

violated the Standard of Care, neither of the parties in this

case have argued that the change in the law quoted in paragraph

64 requires any change in the manner in which they presented

their evidence, the manner in which the hearing should be

conducted, or the appropriate content of this Recommended Order.

By their statements and actions at hearing, and in their

proposed orders, both parties have agreed that the nature of the

evidence to be offered and considered in this case, and the

findings to be based thereon, should not be limited by the

above - quoted changes to the determination of whether the

Stand ard of Care has been violated.

67. It is, therefore, concluded that the acts which the

Department alleged and proved that Dr. Cruz committed with M.R.

constitute a violation of the Standard of Care as alleged in

Count Three of the Administrative Complaint .

E. The Department's Proof; Inadequate Records .

68. Count Four of the Administrative Complaint alleges

that Dr. Cruz's records concerning his treatment of M.R. were

inadequate, in violation of Section 458.331(1)(m), Florida

Statutes, "in that his notes are partially illegible and/or are

cursory and generic."

69. Based upon the testimony of Dr. Joseph, this charge

has also been proved.

F. The Appropriate Penalty .

70. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority. See Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 12 31 (Fla. 5th DCA 1999).

71. The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001 (hereinafter referred to as

the "Disciplinary Guidelines"), which provides, in part, the

following:

(2) Violations and Range of Penalties.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and (2), F.S., the Board

shall act in accordance with the following

disciplinary guidelines and shall impose a

penalty within the range correspondent to

the violations set forth below. . . .

72. The Disciplinary Guidelines provide the following

recommended penalties for the commission, between November 4,

1993, and December 28, 1999, of a first offense violation of the

provisions at issue in this case:

a. S ection 458.331(1)(j), Florida Statutes, violation:

"From one (1) year suspension to revocation . . . and an

administrative fine from $250.00 to $5,000.00";

b. Section 458.331(1)(t), Florida Statutes, violation:

"From two (2) years probation to revocatio n . . . and an

administrative fine from $250.00 to $5,000.00";

c. Section 458.331(1)(x), Florida Statutes, violation:

"From a reprimand to revocation . . . and an administrative fine

from $250.00 to $5,000.00"; and

d. Section 458.331(1)(m), Florida Stat utes violation:

"From a reprimand . . . or two (2) years suspension followed by

probation, and an administrative fine from $250.00 to

$5,000.00."

73. The Disciplinary Guidelines provide the following

recommended penalties for the commission, after Decemb er 28,

1999, of a first offense violation of the provisions at issue in

this case:

a. Section 458.331(1)(j), Florida Statutes, violation:

"From one (1) year suspension and a reprimand and an

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

adm inistrative fine of $10,000.00";

b. Section 458.331(1)(t), Florida Statutes, violation:

"From two (2) years probation to revocation . . . and an

administrative fine from $1,000.00 to $10,000.00";

c. Section 458.331(1)(x), Florida Statutes, violation:

" From a reprimand to revocation . . . and an administrative fine

from $1,000.00 to $10,000.00"; and

d. Section 458.331(1)(m), Florida Statutes violation:

"From a reprimand . . . or two (2) years suspension followed by

probation, and an administrative fine from $1,000.00 to

$10,000.00."

74. Florida Administrative Code Rule 64B8 - 8.001(3)

provides that, in determining the appropriate penalty, the

following aggravating and mitigating circumstances are to be

taken into account:

(3) Aggravating and Mitigatin g

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses establishe d;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recomme nded above and impose suspension or

revocation of licensure.

(h) Any other relevant mitigating factors.

75. Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rule

64B8 - 8.001, it is concluded t hat Dr. Cruz's license to practice

medicine in the State of Florida should be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine finding that Jose Anibal Cruz, M.D., has violated

Sections 458.331(1)(j), (m), (t), and (x) (by violating Section

458.329, Florida Statutes, and Florida Administrative Code Rule

64B8 - 9.008) as alleged the Administrative Complaint; and

revoking Dr. Cruz's license to pra ctice medicine.

DONE AND ENTERED this 15th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day o f April, 2004.

ENDNOTES

1 / The following are the legal conclusions reached in

the April 18, 2003, Order:

1. First, it is clear that any individual

may assert his or her Fifth Amendment

Privilege in order to avoid being a witness

against oneself in a criminal matter. It

does not appear that there is any reasonable

fear that any of the questions posed to

Respondent in this case, if answered, would

expose Respon dent to criminal prosecution or

conviction, or has Respondent asserted any

argument to the contrary;

2. Second, in addition to the right to

assert a Fifth Amendment Privilege in order

to avoid being a witness against oneself in

a criminal matter, the Privilege may also be

asserted in "proceedings 'penal' in nature

in that they tend to degrade the

individual's professional standing,

professional reputation or livelihood."

State ex rel. Vining v. Florida Real Es tate

Commission , 281 So. 2d 487, 491 (Fla. 1973).

This case is a penal proceeding, the nature

of which could degrade Respondent's

professional standing, professional

reputation or livelihood and, therefore,

Respondent can assert his Fifth Amendment

Privil ege in refusing to answer questions

which would tend to "incriminate" him in

this matter. He cannot, however,

selectively assert the Privilege and answer

only selective questions, which he has

chosen to do here, and then, after having at

least partially t hwarted Petitioner's

discovery efforts, expect to testify freely

at the final hearing. Again, Respondent has

not asserted any argument to the contrary;

3. Thirdly, the Vining decision does not

support the notion that the Fifth Amendment

Privilege may be asserted where a respondent

fears that the answers given in one

administrative proceeding or civil

proceeding may lead to another proceeding of

a penal nature that may tend to degrade the

individual's professional standing,

professional reputation or li velihood. In

other words, even Respondent has asserted

the Privilege because he fears that the

answers he gives in this case may lead to

further administrative charges, not now

being pursued or contemplated by Petitioner.

Vining does not extend his right to assert

his Fifth Amendment Privilege to questions

otherwise relevant to this matter.

Respondent may not, therefore, assert the

Privilege in refusing to answer any of the

questions posed to him during the March 25,

2003, portion of his deposition becau se of a

fear that other administrative charges may

be pursued against him by Petitioner; and

4. Finally, there may be a circumstance

where a respondent may assert a Fifth

Amendment Privilege to answer only those

questions concerning "Williams - Rule"

evi dence, as asserted by Respondent at the

final hearing, but this is not such a case.

None of the questions for which Respondent

asserted his Privilege can reasonably be

construed to apply to Williams - Rule

evidence. For example, the Administrative

Complain t in this case alleges that

Respondent "would enter his office, lock the

door behind him, and begin to grope at

Patient M.R.'s breasts and groin." He was

asked the following question during his

deposition to which he asserted a Fifth

Amendment Privilege: "Have you ever used

the lock on the door to your office?" While

it is not impossible that follow up

question, assuming Respondent answered "yes"

to this question, could lead to questions

that only relate to Williams - Rule evidence,

this question does not seek to elicit

anything other than a fact that is clearly

in issue in this matter. While Respondent

may assert his Fifth Amendment Privilege to

this question, with probable sanctions for

doing so being imposed, he may not due so

because he believes it rel ates somehow to

Williams - Rule evidence. While only one

question has been quoted is this paragraph,

the conclusion about this question applies

to all of the questions for which Respondent

asserted a Fifth Amendment Privilege.

2 / No final ruling was enter ed on Petitioner's Motion to

Preclude Respondent's Testimony or Motion in Limine. Respondent

ultimately decided not to testify at the final hearing and,

therefore, the Motion was considered moot.

3 / Dr. Cruz is not board certified in psychiatry.

4 / Dr . Cruz's office at Miami Beach is located within a lower

socioeconomic neighborhood. Dr. Cruz's patients generally

reflect the area in which he practices.

5 / While under his care, Dr. Cruz prescribed a number of

medications for M.R., including Eskalith, Klonopin, Xanax,

Paxil, Floricet, Imitrex, Buspar, Prilosec, Flexeril, and

Restoril. According to Dr. Joseph, while he considered Dr.

Cruz's medical treatment of M.R. "questionable," it did not

violate the standard of care proscribed by Section

458.331(1 )(t), Florida Statutes:

3. The subject can be considered to have

met the standard of care in his management

of this patient from the clinical

standpoint. Patients with Bipolar Disorder

of mixed type may present with multiple

symptoms and require various psychotropic

medications. I question the justification

for the (high) dosing of the

benzodiazepines, but there are times when

such medications are of value if judiciously

used and supervised. . . .

. . . .

8. The subject prescribed doses of

benzodiaze pines, which increase over time.

He begins with Xanax 0.25mg bid and proceeds

to a level of Xanax 2mg tid. This higher

dose level is questionable in such a

patient. The prescription of analgecis such

as Toradol and Fioricet while technically

not outside the standard of care are in my

opinion questionable.

The evidence in this case, therefore, failed to prove that Dr.

Cruz violated Section 458.331(1)(t), Florida Statutes, by his

medication prescription to M.R. The evidence likewise failed to

prove that M.R. was "addicted" to Xanax as suggested by the

Department. M.R.'s testimony in this regard is insufficient to

make such a finding.

6 / The evidence failed to prove whether M.R.'s room was actually

monitored at any time pertinent to this matter.

7 / At the times relevant, it was the practice of Dr. Cruz's

office to see patients on a first come, first service, basis,

even though they had made an appointment. Patients who called

to make an appointment for a particular day, therefore, knew

they would not be guaranteed a particular time. M.R. would come

to the office, sign in, and then be seen by Dr. Cruz when her

name was called. This meant that the sign - in times on

Dr. Cruz's appointment books do not necessarily correspond to

the times when M.R. was act ually seen by him.

8 / No identification was required for patrons who did not rent

for the night. Only patrons who rented a room for the night

were required to produce a driver's license, the number of which

was noted on the registration card. Because D r. Cruz rented for

less than a night, he was not asked to supply anything to verify

the name he used to register.

9 / Dr. Cruz has suggested that, given the alleged different

boundaries between physicians and patients in the Hispanic

community of south Fl orida, as compared with other areas of the

State, that simply giving money to a patient in an effort to

help a patient in need was not inappropriate. The evidence in

this case proved, however, that the money offered by Dr. Cruz to

M.R. was not simply a ma tter of an effort to help a patient, but

part of his more intimate sexual relationship with M.R.

10 / The telephone which M.R. owned was a type that required her

to purchase "minutes" which could then be used to make and

receive telephone calls. The parti cular service M.R. used

recorded the number called from M.R.'s phone, but at the times

relevant, did not record the telephone number of any incoming

calls. For an incoming telephone call, the record of M.R.'s

phone recorded the time that was used up takin g the incoming

call and simply listed her telephone number as both the

originating number and the receiving number.

11 / Again, providing money for M.R.'s phone was not an

acceptable boundary crossing, but was an inappropriate boundary

violation. Dr. Cruz gave M.R. phone money to further their

sexual relationship, not out of some charitable motivation.

12 / M.R.'s telephone was used twice on August 16, 2001: one

call was to telephone information and the other call, which

occurred between 12:36 p.m. and 12 :40 p.m., was recorded by her

telephone - service provider with her own telephone number as the

number receiving the call and the number from which the call was

originated. This is consistent with how incoming telephone

calls were recorded at that time and corroborates M.R.'s

testimony that she received a call from Dr. Cruz that day while

at lunch.

Although the investigators did not hear who M.R. was speaking

to, one of the investigators, who is fluent in Spanish,

overheard M.R. say in Spanish that she woul d meet the person she

was speaking with at the normal place, referring to the Grocery

Store.

13 / The investigators had been instructed by M.R.'s attorney not

to allow M.R. to enter the motel room with Dr. Cruz.

14 / Dr. Cruz offered testimony and a proffe r concerning cultural

differences with respect to the provision of medical care in the

community of Miami, specifically the Hispanic community. The

testimony and proffer were to the effect that, because of these

cultural differences, patients may view the ir physician and the

appropriate patient - physician interaction differently. This

testimony and the proffer, which the Department stipulated would

be the testimony of those witnesses who were not called due to

the cumulative nature of their testimony, was not persuasive and

has been rejected as a basis for any finding of fact contrary to

the findings made in this Recommended Order.

15 / The evidence also failed to prove clearly and convincingly

that, although Dr. Cruz increased M.R.'s prescription of Xanax

between January of 1994 and May of 2001, that she became both

physically and psychologically dependent on Xanax as alleged in

paragraph 10 of the Administrative Complaint.

16 / While it is true that Dr. Joseph agreed that Dr. Cruz's

medical notes did not c onstitute a "violation of the standard of

care," the Department has alleged that Dr. Cruz's notes violate

Section 458.331(1)(m), Florida Statutes, and not Section

458.331(1)(t), Florida Statutes. Dr. Cruz's argument on this

point in his post - hearing submi ttal is, therefore, not relevant.

17 / In its post - hearing submittal, the Department has alleged

other "facts" were proven that support the conclusion that he is

guilty of the first three counts of the Administrative

Complaint. Those facts, however, not h aving been specifically

alleged in support of the charges against Dr. Cruz, cannot form

the basis for any finding of a disciplinable violation. See ,

e.g. , Hamilton v. Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); Cottrill v. Department of Insurance , 685 So. 2d

1371 (Fla. 1st DCA 1996); Kinney v. Department of State , 501 So.

2d 129 (Fla. 5th DCA 1987); and Hunter v. Department o f

Professional Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).

COPIES FURNISHED:

Kim M. Kluck, Esquire

Joy L. Doss, Esquire

Trisah D. Bowles, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother & Sleet, P.A.

201 East Kennedy Boulevard, Suite 1750

Tampa, Florida 33602

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

De partment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of H ealth

4052 Bald Cypress Way, Bin A02

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 recommende d order should be filed with the agency that

will issue the final order in this case.