03-001954PL Department Of Health, Board Of Medicine vs. Robert H. Hunsaker, M.D. Status: Closed Recommended Order on Thursday, February 26, 2004.

Summary: Charges against Respondent, a medical doctor, were not proved by clear and convincing evidence. Therefore, charges should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1954PL

)

ROBERT H. HUNSAKER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on September 23 through 25, 2003, in Miami, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kim M. Klu ck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Andrew Cotzin, Esquire

John M. Cooney, Esquire

Broad and Cassel

One Financial Plaza, Suite 2700

Fort Lauderdale, F lorida 33394

STATEMENT OF THE ISSUES

This is a license discipline case in which Petitioner seeks

to take disciplinary action against Respondent, a licensed

medical doctor, on the basis of alleged violations of paragraphs

(j), (m), (t), and (x) of Sectio n 458.331(1), Florida Statutes.

The alleged violations are set forth in two administrative

complaints, both of which were docketed as a single case when

they were referred to the Division of Administrative Hearings. 1

PRELIMINARY STATEMENT

The alleged viol ations of paragraphs (j) and (x) are based

on allegations that Respondent engaged in acts of sexual

misconduct with each of four patients on whom he had performed

plastic surgery procedures. The alleged violations of

paragraphs (m) and (t) are based on al legations that Respondent

failed to keep a post anesthesia record tracking the recovery of

each of the same four patients.

The violations alleged in the administrative complaints

were disputed by Respondent, and he requested an evidentiary

hearing. In due course, the case was forwarded to the Division

of Administrative Hearings where it was initially docketed as

DOAH Case No. 00 - 2551. DOAH Case No. 00 - 2551 was subsequently

closed in anticipation of a settlement. Settlement negotiations

failed and the mat ter was referred back to DOAH on May 22, 2003,

with a request that DOAH Case No. 00 - 2551 be re - opened. By

order dated May 27, 2003, DOAH Case No. 00 - 2551 was re - opened

under a new case number, 03 - 1954PL. The newly re - opened case

was scheduled for final h earing on September 23 - 25, 2003.

At the hearing on September 23 - 25, 2003, the parties

offered six joint exhibits, all of which were received in

evidence. 2 Petitioner offered three exhibits, which were

received in evidence. 3 Petitioner also presented the testimony

of three witnesses; Patient E.R., Patient S.C., and Carmen

LeClair (a friend who drove one of the patients home after

surgery).

Respondent testified on his own behalf and also called

three additional witnesses: Steven Roadruck (a private

invest igator); Ronald Samson, M.D. (an anesthesiologist); and

Arthur Handal, M.D. (a plastic and reconstructive surgeon).

Respondent also offered eleven exhibits that were received in

evidence. 4

Further, during the course of the final hearing both

parties made requests for official recognition of specified

documents, which requests were granted.

During the course of the final hearing the parties also

presented arguments on several motions, including the following:

Petitioner’s Motion in Limine to Preclude the T estimony of

Phillip Haber, Ph.D. (the motion to preclude Haber's testimony

was granted), Respondent’s Motion in Limine to Exclude the

Testimony of Petitioner’s Alleged Expert Witness Dr. Scott A.

Greenberg at Final Hearing (the motion to exclude Greenberg' s

testimony was denied), and Respondent’s Motion for Partial

Dismissal of Petitioner’s Administrative Complaint on the

Doctrine of Issue Preclusion. The essence of the relief sought

in this last - mentioned motion was granted in substantial part,

although n ot in the precise terms sought by the motion. Certain

findings of fact made in a prior case 5 involving the same parties

as the parties in this case were deemed to be binding on the

parties to this case, and Petitioner in this case was precluded

from attem pting to relitigate those previously established

facts.

The transcript of the final hearing was filed with the

Division on December 8, 2003. The parties were allowed twenty

days from the date of the filing of the transcript to file their

proposed recomme nded orders. The due date for the parties'

proposals was December 29, 2003. Both parties filed timely

Proposed Recommended Orders containing proposed Findings of Fact

and Conclusions of Law. The post - hearing submissions of the

parties have been carefull y considered during the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent, Robert H. Hunsaker, M.D., is now, and was

at all material times, licensed as a physician in the State of

Florida, having been issued license number ME0051546.

Respondent, a board certified plastic surgeon, was employed by

the Premiere Center for Cosmetic Surgery ("Premiere Center") in

Coconut Grove, Florida, when the surgeries that led to the

matters at issue in this proceeding were performed.

2. All acts of a lleged sexual misconduct at issue in this

proceeding are alleged to have occurred in the recovery room at

the Premiere Center following surgery by Respondent. The

recovery room at the Premiere Center is a small area with walls

on three sides and a curtain ed entrance. Just outside the

curtained portion of the recovery room there is a large

reclining chair. There are two beds in the recovery room. The

bed against the left wall can be tilted up or down, and both

patients E.R. and S.C. were placed in the be d on the left side

of the room with their heads toward the rear wall and their feet

toward the curtained entrance. This bed has railings, which are

raised at all times when a patient is in the bed to prevent the

patient from falling out. The recovery roo m is adjacent to the

operating room. To benefit the patient, the recovery room is

kept dimly lit.

3. People frequently walked through the area just beyond

the curtained portion of the recovery room. Any of 8 or 10

Premiere Center employees would have oc casion to walk through

this area at one time or another. Furthermore, the only ingress

and egress to the operating room and recovery room was through

the door located in the area just beyond the curtained recovery

room.

4. When a patient at the Premiere Center was transferred

from the operating room to the recovery area, the patient

routinely was placed in the middle of the bed, with the bedrail

up to prevent the patient from falling out of the bed. Any

patient at the Premiere Center routinely had an I. V. line in his

or her left arm or hand, with a pulse oximeter clipped to a

finger on the left hand. If the pulse oximeter clip were to

become detached from the patient’s finger, an alarm would sound.

The pulse oximeter monitors heart rhythm with an audib le “beep”

sound, and monitors oxygen saturation with a steady tone that

lowers in frequency if oxygen saturation drops. Thus, if the

surgeon is in the room immediately adjacent to the recovery

area, the surgeon can be aware of the status of the pulse and

the oxygen saturation of a patient in the curtained recovery

area.

5. During, as well as immediately following, all of the

surgical procedures that led to the matters at issue in this

proceeding, Respondent was wearing surgical garb, including

scrub pants that did not have a fly. The scrub pants he wore

were fastened at the waist by a drawstring, which consisted of a

piece of non - elastic stout cord or lace, similar to a very long

shoelace. It was Respondent's practice then (and still) to tie

the drawstri ng in the same type of bow as is typically used to

tie shoelaces.

6. At all times pertinent to the issues in this case,

Respondent tried to be one of the last people the patient saw

before going under anesthesia and one of the first people the

patient saw upon waking up. He did this in an effort to provide

each patient with a sense of reassurance and to relax the

patient. At the times pertinent to this proceeding, Respondent

employed a post - operative practice of establishing physical

contact with a patie nt while the patient was regaining

consciousness following surgery. This practice was applied to

both male and female patients. This contact usually consisted

of holding the patient's hand or touching the patient's arm or

shoulder. The purpose of the co ntact was to reassure and relax

the patient. As part of this routine, Respondent would speak to

the patient in soft and reassuring tones, asking the patient how

he or she felt and telling the patient that the surgery was

successful. 6

7. Both patients E.R . and S.C. were administered general

endotracheal anesthesia. Among the anesthetic agents

administered to E.R. and S.C. were: Brevital, Fentanyl, Forane,

Inapsine (also called Droperidol), and Nitrous Oxide. In

addition, both E.R. and S.C. were pre - medi cated with a drug

belonging to the benzodiazepine class – Valium, in the case of

E.R., and Versed (also called Midazolam), in the case of S.C.

8. Experts for both Petitioner and Respondent agree that

the purpose of anesthesia is to alter the sensory perce ption of

the patient so that noxious stimuli will not be processed, and

the patient will not remember the surgical event. Some

anesthetic agents are strong amnesics, meaning that they cause

the patient to not remember the noxious stimuli for a time

follow ing administration. Other anesthetic agents are

analgesic, altering the patient’s sensation to noxious stimuli.

9. Versed is a strong amnesic, as is Valium. Both Versed

and Valium are in the same class of drugs known as

benzodiazepines. Benzodiazepines can cause post - operative

hallucinations, and dreaming during emergence from the effect of

the drug.

10. Nitrous Oxide, Forane, and Fentanyl all change the

patient’s perception of touch. Inapsine provides a state of

mental detachment. Inapsine can cause post - operative

hallucinations, as is stated in the drug package insert. The

effects of all of these drugs can be enhanced when they are

taken in combination. These anesthetic agents can contribute to

a confabulation, and cause an environment ripe for co nfusion.

11. The anesthesia used on these patients greatly altered

their ability to perceive sensory input, including touch. 7 While

in the recovery room following their respective surgeries, both

E.R. and S.C. were on the verge of unconsciousness, could not

stay awake, and could not judge time. 8

12. Although it was Respondent's practice to monitor his

patients post - surgery by listening to the equipment and visually

checking on the patient “at least two times,” this monitoring

was supplemental to the mon itoring activities of the Premiere

Center employees whose primary job was to monitor the patients’

recovery and make the recovery room notations on the patients’

charts. Respondent often did this type of supplemental patient

monitoring while making notes in medical charts or dictating

operative reports at a work area in the room immediately outside

the curtained portion of the recovery area. While doing these

other tasks, he could also be aware of any significant change in

the sounds made by the monitorin g equipment. The Premiere

Center employees primarily responsible for recovery room

monitoring and notations were the Certified Registered Nurse

Anesthetist ("CRNA") and the “circulator.”

13. In May of 1996, Patient E.R., a female patient who was

43 year s old at that time, met with Dr. Hunsaker to discuss

plastic surgery to modify the shape of her nose. Following this

consultation, E.R. consented to rhinoplasty surgery, and after a

pre - operative workup, E.R. presented to the Premiere Center

early in the morning on May 21, 1996. E.R. met with

Dr. Hunsaker, and was then prepped for surgery. E.R. was pre -

medicated with intravenous Valium (2.5 mg) and taken to the

operating room, where she was administered general anesthesia.

Dr. Hunsaker performed the sur gery without incident and Patient

E.R. was then moved to the recovery room. There was a lady in

the bed next to her in the recovery room.

14. In the recovery room, Patient E.R. awoke briefly from

the anesthesia and called out for Suzanne DeRibeaux. No o ne

answered her call and E.R. then fell asleep again.

15. When Patient E.R. awoke again, she recalled being very

frightened because she could not see. Dr. Hunsaker was standing

at her bed, on the left side, and holding her left hand.

Patient E.R. asked why she could not see and if she had lost her

eyesight. Dr. Hunsaker told her not to be scared and that she

could not see because she had ice packs on her eyes.

16. The ice packs blocked Patient E.R.’s vision directly

in front of her face. However, she was able to look underneath

the pack and see her feet and the wall to the right of her bed.

She was not able to see to her left without turning her head to

the left. She did not turn her head to the left while

Respondent was in the recovery room.

17. Al though Patient E.R. could not see Dr. Hunsaker, she

could hear his voice. He asked her how she was feeling and if

she could feel what was in her hand. Dr. Hunsaker pressed her

hand around his fingers and she answered that she could feel

what was in her h and. Dr. Hunsaker then asked Patient E.R. what

was in her hand and she answered, “Those are your fingers.”

18. When Patient E.R. awoke again, Dr. Hunsaker was still

present at her bedside and had his hand underneath her left

hand. Patient E.R. still ha d ice packs on her eyes, but was

able to hear members of the Premiere staff walking and talking.

19. Respondent held her hand and she believes he was

trying to get her to squeeze something with her hand. Patient

E.R. was frightened and did not say anythi ng at the time.

Patient E.R. was afraid to turn her head to the left to look at

Respondent. 9

20. After Dr. Hunsaker left Patient E.R. in the recovery

room area, a nurse came into the room and helped Patient E.R.

out of the bed and into a wheelchair. At that time, Patient

E.R.’s friend, Carmen LeClair, was at the surgery center to pick

up Patient E.R. and drive her to her mother's home. Ms. LeClair

helped Patient E.R. to get dressed.

21. Eventually, E.R. sat up, was put into a wheelchair,

and, assisted by a nurse and by Carmen LeClair, walked to

Ms. LeClair’s car. Ms. LeClair then drove Patient E.R. to the

home of E.R.'s mother.

22. At some time while she was in the bed in the recovery

room, Patient E.R. began to think that perhaps Respondent might

h ave placed his penis in her hand or might have placed her hand

on his penis. During the time she was in the recovery room and

shortly after she left the recovery room, Patient E.R. was not

certain whether the sexual misconduct she believed might have

occu rred had in fact occurred or was instead something she had

dreamed or hallucinated. 10 More than a year later, Patient E.R.

still could not be certain whether her recollection of sexual

misconduct by Respondent was a recollection of an event that

actually happened, or was a recollection of a dream or a

hallucination. More than a year after the her surgery by

Respondent, when Patient E.R. discussed the matter with Valerie

McAllister for the first time, Patient E.R. was more inclined to

believe that she had been hallucinating, rather than to believe

that the misconduct had actually taken place. 11

23. In May of 1997, Patient E.R. returned to the Premiere

Center for some additional plastic surgery on her nose. Until

that time, Patient E.R. had not told anyon e at the Premiere

Center anything about any alleged sexual misconduct by

Respondent. In May of 1997 when she presented to the Premiere

Center for the second surgery, Patient E.R. made a request to

the Premiere Center’s CRNA, Valerie McAllister, that she n ot

receive the same anesthesia as the previous year. She told

Ms. McAllister that the reason for this request was because the

last time, in E.R's own words, "I believe I was hallucinating

that the doctor had put his penis in my hand." Ms. McAllister

told Patient E.R. that she should discuss the matter with

Suzanne DeRibeaux. Suzanne DeRibeaux was an employee of

Premiere Center who had testified against Respondent in the 1997

hearing. About a week later, Patient E.R. discussed her

concerns about the 1996 surgery with DeRibeaux. At that time,

Ms. DeRibeaux informed E.R. that there were several other women

(perhaps as many as six) that, in Ms. DeRibeaux's words,

Respondent “had done this to.” Ms. DeRibeaux handed E.R. a

business card for AHCA investigator , Susan DeCerce. E.R. met

the investigator at the State Attorney’s Office (“SAO”) on

June 4, 1997, where E.R.’s statement was taken by DeCerce.

Patient E.R. was informed by both DeCerce and by personnel from

the SAO that there were other women making the same allegations

against Dr. Hunsaker. In her statement to DeCerce, Patient E.R.

told DeCerce she thought she was squeezing a “pressure gauge”

and not Dr. Hunsaker’s penis.

24. Patient S.C. is a female who was 19 years old when she

went to the Permiere Clinic seeking plastic surgery services.

After initial and pre - operative consultations with Dr. Hunsaker,

Patient S.C. presented on May 7, 1996, at the Premiere Center

for bilateral breast augmentation. The patient's mother and

boyfriend took her to the Premiere Center on the morning of the

surgery.

25. Patient S.C. was duly prepped, pre - medicated with

Versed, and taken to the operating room where she was

administered general anesthesia, consisting of the same

anesthetic agents that were administered t o E.R. Surgery was

performed without incident by Dr. Hunsaker and Patient S.C. was

then moved to the recovery room.

26. While in the recovery room, Patient S.C. woke up and

fell asleep again at least three times that she remembers. On

at least two of t hose times when she woke up in the recovery

room, her mother was standing beside her bed. On at least one

of the occasions when she woke up in the recovery room,

Respondent was standing beside her bed. 12 Patient S.C. recalls

that shortly after she woke u p she heard Respondent asking how

she felt and asking if she was O.K. Patient S.C. also recalls

that at some point in her recovery room experience, Respondent

held her hand.

27. Consistent with his usual practice, Respondent held

S.C.'s hand as she was emerging from anesthesia in the recovery

room and asked how she was feeling. Respondent never held

Patient S.C.'s hand against his penis, nor did he place Patient

S.C.'s hand inside his surgical scrub pants.

28. At some time while she was in the bed in the recovery

room, Patient S.C. began to think that perhaps Respondent might

have held her hand and then might have placed her hand on his

penis. During the time she was in the recovery room and during

the period shortly after she left the recovery room, Patient

S.C. was not certain whether the sexual misconduct she believed

might have occurred had in fact occurred, or was instead

something she had dreamed or hallucinated. 13

29. When she woke up the last time, Patient S.C. recalls

that her mother was a t S.C.'s bedside. S.C.'s mother assisted

her in getting dressed, and S.C.'s mother and boyfriend took

S.C. home. S.C. did not say anything to her mother about any

alleged sexual misconduct by Respondent until many months later,

following a television new scast about Respondent. S.C. did

mention something vague to her boyfriend as he was carrying her

to the car in the Premiere Center parking lot, which was to the

effect that, "I thought something had happened in the room." 14

30. Well over a year after he r surgery, Patient S.C. saw a

television newscast on Channel 10 in which it was stated that a

number of other women had come forward with allegations that

Respondent had manipulated their hands onto his penis during

their recovery from anesthesia. The new scast also stated that

anyone else who had been through a similar experience should

come forward. Patient S.C. contacted the news station. The

newscaster took Patient S.C.'s name and telephone number, and

shortly thereafter AHCA field investigator Susan DeCerce

contacted S.C.

31. Respondent emphatically denied that he engaged in

sexual misconduct with any of his patients. 15 Respondent's

testimony, including his denial of any sexual misconduct, is

found to be credible. 16

32. During the course of his t reatment of Patient L.P.,

Respondent did not engage in any sexual misconduct of any kind

with the patient. Specifically, Respondent did not at any time,

in the recovery room or elsewhere, place his penis in Patient

L.P.'s hand or cause Patient L.P.'s hand to come in contact with

his penis. 17

33. During the course of his treatment of Patient A.V.,

Respondent did not engage in any sexual misconduct of any kind

with the patient. Specifically, Respondent did not at any time,

in the recovery room or elsewher e, place his penis in Patient

A.V.'s hand or cause Patient A.V.'s hand to come in contact with

his penis.

34. During the course of his treatment of Patient E.R.,

Respondent did not engage in any sexual misconduct of any kind

with the patient. Specifical ly, Respondent did not at any time,

in the recovery room or elsewhere, place his penis in Patient

E.R.'s hand or cause Patient E.R.'s hand to come in contact with

his penis.

35. During the course of his treatment of Patient S.C.,

Respondent did not engag e in any sexual misconduct of any kind

with the patient. Specifically, Respondent did not at any time,

in the recovery room or elsewhere, place his penis in Patient

S.C.'s hand or cause Patient S.C.'s hand to come in contact with

his penis.

36. During t he course of his treatment of Patients L.P.,

A.V., E.R., and S.C., Respondent did not keep a post - anesthesia

record tracking the recovery of any of these four patients while

they were in the recovery room.

37. Respondent learned for the first time that v ital signs

were not recorded during the recovery of patients E.R., S.C.,

A.V., and L.P. only after the Administrative Complaints in this

case were filed. None of the four patients suffered any harm

from the absence of recordation of vital signs during the

recovery period.

38. During the time period in which Respondent was

treating patients L.P., A.V., E.R., and S.C. (calendar year

1996), in a private office surgery setting, in the normal course

of events, the anesthesia provider (either anesthesiologist or

CRNA) would chart the patient’s immediate post - anesthesia

recovery. Further recovery room charting would normally be the

responsibility of the person assigned to take over the recovery

from the anesthesia provider. During that time period and under

th ose circumstances, the surgeon's responsibility to make a

record of events in the recovery room existed only where the

surgeon actually intervened during the recovery room period to

provide some form of treatment (such as changing I.V. fluid or

administeri ng medication) or if there were a dramatic or unusual

event during the course of the recovery. With the exception of

Respondent's administration of Droperidol to Patient S.C. (which

was noted in the medical record), there were no such events in

the recove ries of Patients E.R., S.C., A.V., and L.P., and,

consequently, no requirement that Respondent make recovery room

notations during the recoveries of these patients.

39. During the time period in which Respondent was

treating Patients L.P., A.V., E.R., an d S.C. (calendar year

1996), and under the circumstances in which Respondent was

treating those patients (in an office surgery setting in which

the facility was providing the CRNA anesthesia provider and was

also providing an employee to recover patients i n the recovery

room), Respondent was not responsible for preparing the record

of the patient's recovery room experience. Rather, at that time

and under those circumstances, the person responsible for

preparing the recovery room record was either the perso n who

administered the anesthesia (the CRNA) or the employee of the

facility who was assigned to monitor the patient in the recovery

room and who was the person to whom the CRNA would entrust the

patient's recovery room care once the CRNA was satisfied tha t

the patient was sufficiently stable.

40. During the time period in which Respondent was

treating Patients L.P., A.V., E.R., and S.C. (calendar year

1996), and under the circumstances in which Respondent was

treating those patients, a reasonably prudent similar physician

under the same or similar circumstances would have recognized

Respondent's failure to keep a post - anesthesia record tracking

the recovery of any of these four patients while they were in

the recovery room as being acceptable, because suc h a reasonably

prudent similar physician would have expected the recovery room

record to have been prepared by the anesthesia provider or other

person assigned to monitor the patient in the recovery room.

41. During the time period in which Respondent w as

treating Patients L.P., A.V., E.R., and S.C. (calendar year

1996), and under the circumstances in which Respondent was

treating those patients, Respondent's failure to keep a post -

anesthesia record tracking the recovery of any of these four

patients whi le they were in the recovery room was not a 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.

42. Durin g the time period in which Respondent was

treating Patients L.P., A.V., E.R., and S.C. (calendar year

1996), and under the circumstances in which Respondent was

treating those patients, Respondent's failure to keep a post -

anesthesia record tracking the rec overy of any of these four

patients while they were in the recovery room was not a failure

to keep written medical records justifying the course of

treatment of the patient, because the responsibility for the

preparation of such records was a responsibilit y of the

anesthesia provider or other person assigned to monitor the

patient while the patient was in the recovery room. In such

time and circumstances the surgeon was not responsible for the

preparation of such records in the absence of some unusual

circ umstances, which unusual circumstances did not occur in any

of the recovery room experiences following the surgeries at

issue here. 18

CONCLUSIONS OF LAW

General matters

43. The Division of Administrative Hearings has

jurisdiction over the parties to and t he subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2003).

44. Where the revocation or suspension of the physician's

license is sought, proof greater than a mere preponderance of

the evidence mus t be submitted before the Board of Medicine

(Board) may take punitive action against a licensed physician.

Clear and convincing evidence of the physician's guilt is

required. § 458.331(3), Fla. Stat. See also Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995);

Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fl a. 1st DCA 1994);

Nair v. Department of Business and Professional Regulation , 654

So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department

of Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992);

Munch v. Department of Professional Regulation , 592 So. 2d 1136

(Fla. 1st DCA 1992); Newberry v. Florida Department of Law

Enforcement , 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v.

Department of Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988);

§ 458.331(3), Fla. Stat.; § 120.57(1)(h), Fla. Stat. ("Findings

o f fact shall be based on a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute.").

45. "'[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and 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

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be established.'" In re Davey , 645

So. 2d 398, 404 (Fla. 1994), quoting, with approval, from

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

46. When the Board seeks to take punitive action against a

physician, such action may be based only upon those offenses

specifically alleged in the administrative complaint. See

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fl a.

1st DCA 1996); Chrysler v. Department of Professional

Regulation , 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v.

Department of Business and Professional Regulation , 625 So. 2d

1237, 1238 - 39 (Fla. 2d DCA 1993); Arpayoglou v. Department of

Professional Regul ation , 603 So. 2d 8 (Fla. 1st DCA 1992);

Willner v. Department of Professional Regulation, Board of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v.

Department of Professional Regulation, Board of Medicine , 560

So. 2d 383, 384 (Fla. 3d DCA 1990 ); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v.

Department of Professional Regulation , 465 So. 2d 1324, 1325

(Fla. 1st DCA 1985); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984 ).

47. Furthermore, in determining whether Section

458.331(1), Florida Statutes, has been violated in the manner

charged in the administrative complaint, one "must bear in mind

that it is, in effect, a penal statute. . . . This being true

the statute mus t be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it. Furthermore, if there are any ambiguities included such

must be construed in favor of the . . . licensee." Lester v.

Department of Pro fessional and Occupational Regulations , 348 So.

2d 923, 925 (Fla. 1st DCA 1977).

New legislation

48. By operation of new legislation enacted during the

2003 session of the Florida Legislature, effective September 15,

2003, "[t]he determination of whether or not a licensee has

violated the laws and rules regulating the 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 admini strative law

judge." See Chapter 2003 - 416, Laws of Florida, at Section 20

(amending Section 456.073(5), Florida Statutes (2002)). Because

this proceeding is one of the very first cases to be tried

following the effective date of the above - quoted amendmen ts,

there does not yet appear to be any decisional guidance from the

Department of Health, from any of the boards, or from any

appellate court, as to what extent, if any, the above - quoted

amendment requires any changes in the manner in which hearings

befor e the Division of Administrative Hearings should be

conducted, or requires any changes in the content of the

recommended orders prepared by the DOAH administrative law

judges. Nor have the parties to this case offered much in the

way of guidance regarding the new legislation. By their conduct

at hearing both parties seemed to be of the view that the above -

quoted statutory amendments did not change the nature of the

evidence to be offered in cases of this nature, because both

parties requested, and were gr anted, the opportunity to offer

expert witness testimony on the subject matter of whether

Respondent "has violated the laws and rules regulating the

profession," as well as on the subject matter of what

constitutes the "reasonable standard of care."

49. T he proposed recommended orders submitted by the

parties do not suggest that the above - quoted statutory language

requires any changes to the type of content that has customarily

been included in recommended orders in cases of this nature. In

fact, the part ies' proposed recommended orders do not even

mention these statutory amendments.

50. It has been suggested in other recent cases that the

subject amendments perhaps are not applicable to cases that were

pending prior to the effective date of the amendment s. However,

because the amendments appear to address matters of procedure

rather than matters of substance, the amendments appear to be

applicable to cases pending as of the effective date of the law

that created the amendments. See Basel v. McFarland & Sons,

Inc. , 815 So. 2d 687 (Fla. 5th DCA 2002), in which the court

noted at page 692: "In the absence of clear legislative intent,

a law affecting substantive rights is presumed to apply

prospectively only while procedural or remedial statutes are

presume d to operate retrospectively. See Young v. Altenhaus ,

472 So. 2d 1152 (Fla. 1985)." See also Life Care Centers of

America, Inc. v. Sawgrass Care Center, Inc. , 683 So. 2d 609

(Fla. 1st DCA 1996).

51. The language of the subject amendments to Section

456 .073(5), Florida Statutes (2002), is sufficiently broad for

it to be interpreted and applied in more than one way. And some

of the possible interpretations and applications might at some

future date provide a basis for modification of the manner in

which administrative hearings in such cases are conducted. But

such possible interpretations and applications are merely

possibilities; they are not certainties. Therefore, unless and

until there is some authoritative interpretation or

implementation of the su bject amendments directing otherwise,

the most prudent course appears to be for the DOAH

administrative law judges to continue to receive evidence and to

continue to make "determinations" (by findings of fact or by

conclusions of law) as to what constitute s the "reasonable

standard of care" and as to whether a licensee "has violated the

laws and rules regulating the profession”; especially in cases

like this one in which both parties requested such a course of

action by the administrative law judge. 19

The s pecific statutes and charges

52. At all times material to the events that form the

basis for the charges in this case, Section 458.329, Florida

Statutes (1995), 20 read as follows:

The physician - patient relationship is

founded on mutual trust. Sexual mi sconduct

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 engage the patient, in sexual

act ivity outside the scope of the practice

or the scope of generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of

medicine is prohibited.

53. At the time of the events that form the basis for the

charges in this ca se, paragraphs (j),(m), (t), and (x) of

Section 458.331(1), Florida Statutes (1995), authorized the

Board to revoke, suspend, or otherwise discipline the license of

a physician for reasons that included the following:

(j) Exercising influence within a pa tient -

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 physician.

* * *

(m) Failing to keep written medica l

records justifying the course of treatment

of the patient, including, but not limited

to, patient histories; examination results;

test results; records of drugs prescribed,

dispensed, or administered; and reports of

consultations and hospitalizations.

* * *

(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. . . . As used

in this paragraph, "gross malpractice" or

"the failure to practice medicine with that

level or care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstance s," shall not be

construed so as to require more than one

instance, event, or act. Nothing in this

paragraph shall be construed to require that

a physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

* * *

(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.

54. Fl orida Administrative Code Rule 64B8 - 9.008 states in

part that sexual contact with a patient is sexual misconduct,

which includes, but is not limited to, verbal or physical

behavior which may reasonably be interpreted as romantic

involvement with a patient regardless of whether such

involvement occurs in the professional setting or outside of it;

may reasonably be interpreted as intended for the sexual arousal

or gratification of the physician, the patient, or any third

party; or may be reasonably interprete d as being sexual.

55. In Counts One and Two of the two administrative

complaints in this case, Respondent is charged with having

violated Section 458.331(1)(x), Florida Statutes, in two

different ways by reason of allegations of sexual misconduct

with e ach of the four patients, L.P., A.V., E.R., and S.C. In

Count Three of the two administrative complaints, Respondent is

charged with having violated Section 458.331(1)(j), Florida

Statutes, by reason of allegations that Respondent exercised

influence with in a patient - physician relationship for the

purpose of engaging in sexual activity with each of the four

patients, L.P., A.V., E.R., and S.C. All of the counts

described in this paragraph are predicated upon a factual

assertion that Respondent engaged in sexual misconduct with each

of the four patients that consisted of "placing his penis in the

hands of" each of the four patients. Those acts of sexual

misconduct were not proved by clear and convincing evidence. To

the contrary, the undersigned is convin ced that Respondent did

not engage in any sexual misconduct with any of his patients.

Such being the case, all of the violations charged in Counts

One, Two, and Three of both administrative complaints should be

dismissed.

56. Count Four of each of the t wo administrative

complaints in this case charge Respondent with violation of

Section 458.331(1)(t), Florida Statutes, by reason of

allegations that he "failed to keep a post anesthesia record

tracking the recovery of" each of the four patients, L.P., A.V. ,

E.R., and S.C. It is undisputed that Respondent did not prepare

such a record for any of these four patients. Nevertheless, the

evidence does not establish violations of Section 458.331(1)(t),

Florida Statutes, because the most persuasive expert witnes s

testimony (including testimony by Petitioner's expert witnesses)

was to the effect that, in the normal course of events, such

record - keeping was not the responsibility of the surgeon. 21 It

can hardly be a violation of Section 458.331(1)(t), Florida

Stat utes, for a physician to fail to perform an act which is not

the physician's responsibility. 22 Therefore, all of the

violations charged in Count Four of both administrative

complaints in this case should be dismissed.

57. Count Five of each of the two a dministrative

complaints in this case charge Respondent with violations of

Section 458.331(1)(m), Florida Statutes, on the basis of what

are, for all practical purposes, the identical record - keeping

failures alleged in Count Four, and discussed immediately above.

The violations charged in Count Five should be dismissed for the

same reasons as the violations alleged in Count Four: the

preparation of such records was not the responsibility of

Respondent.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED

that a Final Order be issued in this case to the following

effect:

(1) Adopting all of the findings of fact

in this Recommended Order,

(2) Adopting all of the conclusions of law

in this Recommended Order,

(3) Concluding that the evidence is

insufficient to establish any of the charges

in either of the administrative complaints

at issue in this case, and

(3) Dismissing all charges contained in

both of the administrative complaints at

issue in this case.

DONE AND ENTERED this 26 th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 26th day of February, 2004.

ENDNOTES

1/ The earliest of the charging documents is a document titled

AMENDED ADMINISTRATIVE COMPLAINT s igned on August 3, 1998. That

document was identified at the Department of Health as the

Department's Case Number 97 - 17509. The allegations in that

document concern events that allegedly took place during

Respondent's treatment of a person identified as Patient S.C.

The other charging document is a document titled ADMINISTRATIVE

COMPLAINT signed on November 5, 1998. That document was

identified at the Department of Health as the Department's Case

Numbers 97 - 10367, 98 - 12056, and 98 - 12059. The allegation s in

this last - mentioned document concern events that allegedly took

place during Respondent's treatment of three individuals

identified as Patient E.R., Patient L.P., and Patient A.V.

2/ The first four joint exhibits were the medical records of

the subj ect patients. Joint Exhibit 5 was a videotape depicting

portions of the Premiere Center, and Joint Exhibit 6 was a still

photograph.

3/ Petitioner Exhibit 1 consists of portions of the transcript

of Respondent's pre - hearing deposition testimony, Petitio ner

Exhibit 2 consists of the transcript of the deposition testimony

of Scott Greenberg, M.D. (a plastic surgeon) and the doctor's

CV, and Petitioner Exhibit 3 consists of the transcript of the

deposition testimony of David Michael Glener, M.D. (an

anesthe siologist) and the doctor's CV.

4/ Some of Respondent's exhibits had subparts. Details

regarding the offer and disposition of all of Respondent's

exhibits are contained in the transcript of the final hearing

for those who might need to know such details .

5/ The prior case was Department of Health, Board of Medicine

vs. Robert Huson Hunsaker, M.D. , DOAH Case No. 97 - 0377, in which

a Recommended Order was issued on July 23, 1997, and a Final

Order was issued by the Board of Medicine on October 20, 1997.

In the 1997 final hearing two witnesses, L.P. and A.V.,

testified as so - called "Williams Rule" witnesses. The essence

of their testimony was that, while in the recovery room

following surgery by Respondent, Respondent had engaged in

sexual misconduct whic h consisted of causing the patient's hand

to be placed in contact with his penis. The Administrative Law

Judge (ALJ) in Case No. 97 - 0377 found that the testimony of

witnesses L.P. and A.V. was not persuasive and was not worthy of

belief. Consistent with that view of their testimony, and upon

consideration of Respondent's testimony in Case No. 97 - 0377, the

ALJ's findings of fact included a finding that Respondent did

not commit the misconduct testified to by L.P. and A.V. In its

Final Order in Case No. 97 - 0377, the Board of Medicine stated,

among other things, that "[t]he findings of fact set forth in

the Recommended Order are approved and adopted and incorporated

herein by reference." In this case Respondent was charged with

having committed the sexual m isconduct previously testified to

by L.P. and A.V. in the 1997 hearing. At the final hearing in

this case, Petitioner sought to have L.P. and A.V. testify again

to the same alleged misconduct by Respondent that they had

testified to in the 1997 hearing. The ALJ in this case

concluded that the findings of fact regarding L.P. and A.V. in

the 1997 Recommended and Final Orders were binding on both

parties. Consistent with that view, Petitioner was precluded

from relitigating any allegations of sexual miscond uct by

Respondent involving either L.P. or A.V.

6/ David Glener, M.D., one of Petitioner's expert witnesses,

agrees that it is common practice for a surgeon to hold a

patient's hand in the recovery room.

7/ This, of course, is why the anesthetic agents are

administered to the patients. The purpose of the anesthesia is

to cause the patient to be unable to perceive or to remember the

pain associated with the surgical process. In other words, the

anesthetic agents are intended to cause the patient to be

unaware of what is happening during surgery. These effects of

the anesthesia continue for a while after the administration of

anesthetic agents has been discontinued.

8/ In this regard it is also noteworthy that neither Patient

E.R. nor Patient S.C. vis ually observed any act of sexual

misconduct. Specifically, neither E.R. nor S.C. claimed to have

seen Respondent's penis. Nor did either of them claim to have

seen their hand in contact with the genital area of Respondent's

scrub pants.

9/ Patient E.R. described the reason for her fear as follows:

"I was afraid of turning my face to the side because . . . for

some reason I thought my brain was going to come out of my nose

or something or I was petrified of moving." This type of

muddled thinking sugges ts that at that time the patient was

still substantially under the influence of the anesthetic

agents.

10/ For example, on the drive to her mother's house following

the surgery, Patient E.R. told her best friend, "I think the

doctor put his penis in my h and." (Emphasis supplied.) The

friend replied, "You're kidding, right?" Then, more than a year

went by before Patient E.R. again mentioned anything to her best

friend about any alleged misconduct by Respondent. Similarly,

Patient E.R. waited more than a year before mentioning any

allegations of misconduct by Respondent to either her boyfriend

(now fiancé) or to her father.

11/ The conduct of Patient E.R. during the year between her two

surgeries at Premiere Center also suggests that during that

period she believed she had had a dream or a hallucination,

because during that period she visited Respondent at least nine

times at the Premiere Center. Further, during some of those

visits she discussed having Respondent perform some additional

plastic surgery procedures for her.

12/ Patient S.C. is not certain whether Respondent was standing

beside her bed in the recovery room when she woke up the first

time, or whether he was there when she woke up the second time.

Patient S.C. has no recollection of Respo ndent administering

medication through her I.V. line to treat her nausea and

vomiting, at which time he was, of necessity, at the patient's

bedside.

13/ For example, right after the surgery S.C. "had a feeling

that something may have happened," and when her boyfriend was

carrying her to the car after the surgery, S.C. told him only

that she thought "something had happened in the room"; not that

she was certain "something had happened." Shortly after the

surgery, when Patient S.C. first got home, she was not certain

of what, if anything, had happened. Although S.C. made several

follow - up visits to the Premiere Center (including a follow - up

visit the very next day after her surgery), she never mentioned

to anyone at the Premiere Center anything about any p ossible

sexual misconduct by Respondent. And she waited well over a

year before mentioning to anyone else her thoughts that

Respondent might have engaged in sexual misconduct in the

recovery room.

14/ Not only was much of S.C.'s testimony vague, or lack ing in

detail, or qualified by statements indicating uncertainty on her

part, but her credibility was cast into substantial doubt by the

fact that at different times she has testified to very different

versions of the alleged sexual misconduct. One versio n

testified to by Patient S.C. is that Respondent placed her hand

on the outside of his scrub pants against the part of the pants

that covered Respondent's penis. Another version of the same

incident testified to by S.C. is that her hand was inside

Respon dent's scrub pants and was touching Respondent's penis

inside the pants. The credibility of S.C.'s testimony was

further eroded by her statements near the end of her testimony

that included ". . . I can't really say for sure if it was on

the outside or th e inside because it is something I have tried

so hard to forget. . . . I don't want to say for sure that I

was inside his pants or not." Also detracting from credibility

is the fact that S.C. (like E.R.) does not remember whether the

penis she thinks she felt (but never saw) was soft or firm.

15/ The defense to the allegations of sexual misconduct is that

there were no acts of sexual misconduct. The parties stipulated

that there is no legitimate medical purpose for a surgeon to

place his penis in the ha nd of a post - operative patient and that

it would be below acceptable standards of care for a surgeon to

do so.

16/ Respondent's emphatic and credible denials of any sexual

misconduct with any of his patients were made both in his

testimony at the 1997 he aring in DOAH Case No. 97 - 0377 and in

his testimony at the final hearing in this case on September 23 -

25, 2003. This finding of fact is based on both the facts found

in Case No. 97 - 0377 (which facts the parties have been precluded

from relitigating) and o n the testimony received in this case at

the final hearing on September 23 - 25, 2003. So much of this

finding of fact as relates to Patient A.V. and Patient L.P. is

based on the facts found by Judge Arrington in DOAH Case No. 97 -

0377, which facts were adop ted by the Board of Medicine in its

Final Order in that case. In endnotes 5 and 6 of Judge

Arrington's Recommended Order he further explains the basis for

his finding that Respondent did not engage in any sexual

misconduct with Patient L.P. or Patient A.V . Those footnotes

read:

5/ A. V. testified that as she was coming

out of anesthesia she thought that

Respondent had placed his penis in her hand.

A. V. also testified that she looked at her

hand and that what she thought was

Respondent's penis was only his hand holding

her hand. P. S. testified that she was not

aware that A. V. had seen that it was

Respondent's hand in her hand and not his

penis.

6/ Another female patient, L. P., testified

that Respondent placed his penis in her hand

while she was co ming out of anesthesia.

Like P. S., L. P. was in the middle of the

bed in a position where Respondent could not

have physically done what she claimed he

did.

So much of this finding of fact as relates to Patient E.R. and

Patient S.C. is based on the eval uation by the ALJ in this case

of the credibility of Respondent, as well as on the ALJ's

careful consideration of the testimony of Patient E.R. and

Patient S.C., and an evaluation of the credibility of those two

witnesses. On all material issues, the test imony of Respondent

was credible, clear, and convincing. The testimony of Patient

E.R. and Patient S.C. was not persuasive or credible, and most

certainly was not clear and convincing. This is not to say that

E.R. and S.C. were intentionally presenting t estimony they knew

to be false. It is possible that they both sincerely believe

that events such as those they testified to probably happened.

But sincere belief that something probably happened is quite a

different matter from certainty that a specific event actually

took place. In the final analysis, it appears that at the time

of the alleged events, E.R. and S.C. simply were too impaired by

the lingering effects of the anesthetic agents for their

accounts to be relied upon as persuasive proof of what actually

transpired in the recovery room. Petitioner simply has not

shown by clear and convincing evidence that Respondent committed

sexual misconduct with any of his patients.

17/ The findings of fact in this paragraph relating to Patient

L.P. and the findings of fact in the following paragraph

relating to Patient A.V. are drawn from the factual findings on

these issues that were made in Case No. 97 - 0377 when the same

factual issues were litigated by the same parties. Respondent's

motion to preclude th e relitigation of facts established in the

1997 hearing regarding Patients L.P. and A.V. was argued and

granted early in the hearing on September 23 - 25, 2003. The

ruling on the motion, and the reasons for the ruling, are at

pages 195 - 197 of the transcript of the final hearing, which

include the following explanation by the ALJ in this case:

I'm of the view . . . that i[f] paragraph

31 of the findings of fact [in] . . .

[J]udge Arrington's recommended order issued

in 1997 is read in conjunction with the text

of footnotes 5 and 6 in that same document,

[t]hat the factual issue of whether the

sexual misconduct previously testified to by

A.V. [and] previously testified to by L.P.

actually occurred, has been resolved in

favor of the [d]octor, that the specifi c

conduct to which they testified did not

occur. Now [since] I am of the view that

because of the identities of the parties and

because the Department or Agency in 1997 had

the same interest in establishing those

facts then as they would have i[n]

establi shing those facts now, that the

Agency is precluded from re - litigating those

facts.

So for the purpose of my fact - finding

here, I'm going to find as did Judge

Arrington in 1997 that the act[s] of

misconduct testified to by A.V. and L.P.,

and the acts of sexual misconduct involving

those two persons that are alleged in the

administrative complaint that brings us here

together today did not occur, or that the

evidence is insufficient to show that they

did occur. And, stated more specifically,

I'm going to conclude that there's no clear

and convincing evidence of those facts, and

I'm going to preclude the re - litigation of

it. I think that those factual issues were

settled in the 1997 case.

* * *

[A] factual finding that is binding on the

parties has already been made to the effect

that this Respondent/Doctor did not commit

the acts described by L.P. and A.V.

18/ The findings of fact in this paragraph, as well as findings

in the three immediately preceding paragraphs, are based in

large part on the t estimony of Petitioner's expert witnesses Dr.

Greenberg and Dr. Glener. Dr. Greenberg's practice, like that

of Respondent, consists primarily of aesthetic plastic surgery,

much of which is performed in an office surgery setting. Dr.

Greenberg is clearly of the view that, in the normal course of

events, the surgeon is not responsible for preparing the post -

anesthesia recovery room record. Rather, in Dr. Greenberg's

opinion, the preparation of the post - anesthesia recovery room

record is the responsibility of the person who is designated to

monitor the patient in the recovery room. Dr. Greenberg's

conduct is consistent with his opinion. In his entire career as

a plastic surgeon, Dr. Greenberg has prepared and kept post -

anesthesia recovery room notes on onl y one occasion. That one

occasion was when the circulating nurse, who normally did the

recoveries, got called away and the only people left to do the

recovery were Dr. Greenberg and the anesthesiologist.

(Greenberg deposition transcript, pages 58 - 59.) D r. Glener, a

board certified anesthesiologist, agreed with Dr. Greenberg's

opinion that, in the normal course of events, preparation of the

post - anesthesia recovery room records is not the responsibility

of the surgeon. Dr. Glener agrees that, in a small facility, it

would be acceptable for the nurse anesthetist or a trained nurse

to recover the patient and keep the recovery room notes.

19/ Some of my "determinations" as to whether Respondent "has

violated the laws and rules regulating the profession" ar e

located in the Findings of Fact portion of this Recommended

Order, and other such "determinations" are located in the

Conclusions of Law. The ALJ has tried to place such

determinations where he believes they belong, taking into

consideration both a long history of appellate court guidance on

such matters and the new legislative pronouncement which does

not appear to have yet been the subject of board, department, or

judicial interpretation. In any event, the placement of such

determinations in one part of the Recommended Order or the other

does not appear to be of any great moment, because it is

reasonable to expect that the appellate courts will continue to

be of the view that, regardless of where placed and regardless

of how characterized, a fact will always be a fact and a

conclusion of law will always be a conclusion of law.

20/ At all times material to the alleged violations at issue in

this case, Sections 458.329 and 458.331, Florida Statutes

(1995), were in effect and are the versions of the stat utes

which must be applied here. During the 1996 session of the

Florida Legislature there were some amendments to other portions

of Section 458.331, Florida Statutes, but none of those

amendments are relevant to the issues here.

21/ It may well be that, even though not responsible for making

a post - anesthesia record tracking the recovery of the patient, a

surgeon has some supervisory duty to confirm that those charged

with the responsibility of preparing the recovery room record

are carrying out their re sponsibilities. However, no such duty

was alleged and no such duty was proved. Absent allegation and

proof, no disciplinary action can be predicated upon such a

duty, if such a duty exists (or if it existed in 1996 under the

circumstances from which this case arises). In this regard it

is also worthy of note that it is well - settled that a health

care professional cannot be penalized for the improper actions

of other employees absent proof that the health care

professional had actual knowledge of the impr oper actions of

other employees. Bach v. Florida State Board of Dentistry , 378

So. 2d 34 (Fla. 1st DCA 1980).

22/ See Gross, M.D. v. Department of Health , 819 So. 2d 997

(5th DCA 2002), in which it was held that it was not a violation

of Section 458.331 (1)(t), Florida Statutes, for a physician to

fail to perform a task that was the responsibility of the staff

of a hospital's Cardiac Cath Lab.

COPIES FURNISHED :

Andrew Cotzin, Esquire

Broad and Cassel

One Financial Plaza, Suite 2700

Fort Lauderdale, Flo rida 33394

Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 Co unsel

Department of Health

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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the final order in this case.