05-004042PL Department Of Health, Board Of Medicine vs. Adrian Isidore Jose Medina, M.D. Status: Closed Recommended Order on Thursday, January 4, 2007.

Summary: Respondent is guilty of sexual misconduct, and pled guilty to having sex with a 16 or 17-year-old.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4042PL

)

ADRIAN ISIDORE JOSE MEDINA, M.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to n otice, a final hearing was held in this case

on September 19 and 20, 2006, in Orlando, Florida, before Susan

B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: April D. Skilling, Esqui re

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 4749

For Respondent: Mark D. Rodriguez, Esquire

Law Offices of Mark D. Rodr iguez

508 West Main Street

Inverness, Florida 34450 - 4749

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 456.072(1)(u), 458.331(1)(j), and 458.3 31(1)(nn),

Florida Statutes (2002 and 2003); Subsection 458.331(1)(c),

Florida Statutes (2004) 1 ; and Florida Administrative Code Rule

64B8 - 9.008, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 21, 2005, Petitioner, the Dep artment of Health,

Board of Medicine (Department), filed a four - count

Administrative Complaint, alleging that Respondent, Adrian

Isidore Jose Medina, M.D. (Dr. Medina), violated Subsections

456.072(1)(u), 458.331(1)(j), and 458.331(1)(nn), Florida

Statutes ; Subsection 458.331(1)(c), Florida Statutes (2003); and

Florida Administrative Code Rule 64B8 - 9.008. Dr. Medina

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings on November 2, 2005,

for assignment of an administrative law judge.

The final hearing was originally scheduled for January 10 -

12, 2006. Due to requests for continuances, the final hearing

was rescheduled numerous times.

On July 17, 2006, the Department filed a Notice of

Scrivener's Error, stating that the statutory references in

paragraphs 62 and 65 of the Administrative Complaint should be

to the 2004 version rather than the 2003 version of the Florida

Statutes. At the final hearing, the Administrative Complaint

was amended to reflect the correction.

On July 19, 2006, the Department filed a Motion to Seal

Deposition Videos and Redact Names, requesting that the video -

taped depositions of S.C., P.M., and F.M. be sealed and that the

full names of S.C., F.M., and P.M. be redacted from the reco rd.

There was no objection to the motion, which was granted at the

final hearing.

At the final hearing, the Department called the following

witnesses: Babette Smith - Agett, David Lashbrook, S.E.C., Lija

G. Scherer, Denise Ann Nevers, and Mary Ellen Singe r.

Petitioner's Exhibits 1 - A, 1 - B, 1 - C, 2 - A, 2 - B, 2 - C, 3 - A, 3 - B, 4

through 8, 10 through 13, 18 through 24, 25A, and 25B were

admitted in evidence.

At the final hearing, Dr. Medina called J. Darrin Miller

and Eileen R. Synder as his witnesses. Respondent 's Exhibit A

was admitted in evidence.

The three - volume Transcript was filed on November 9, 2006.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The parties

timely filed their proposed reco mmended orders, which have been

considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of medicine under Florida l aw pursuant

to Section 20.43 and Chapters 456 and 458, F lorida Statutes

(2002 - 2004).

2. At all times material to the allegations in the

Administrative Complaint, Dr. Medina was licensed to practice

medicine within the State of Florida pursuant to Chapter 458,

Florida Statutes (2002 - 2004), having been issued li cense number

ME 74141 on September 9, 1997. Dr. Medina is board - certified in

orthopedic surgery.

3. In April 2003, S.C., who at that time was 15 years old,

went to Jewitt Orthopedic Center in Orlando, Florida, regarding

her collarbone. She was advised t hat she could have surgery or,

due to her young age, she could wait to see if the problem

resolved as she grew older.

4. S.C. desired another opinion from an orthopedic

surgeon. With her parents' permission, she went on the I nternet

and located the e - mai l addresses of three orthopedic surgeons

using the membership directory of America Online (AOL). One of

the doctors she found in the membership directory was Dr.

Medina. She sent an e - mail to each of the three orthopedic

physicians, telling him of her ai lment , the opinion that she had

received from the Jewett Orthopedic Center , and requesting a

second opinion.

5. Two of the three doctors responded to her e - mail. One

of these doctors was Dr. Medina, who advised S.C. that her bones

were still growing and that due to her age she should wait and

see if her collarbone healed by itself. In responding to her

inquiry, Dr. Medina used the e - mail address of [e-mail].

6. A few days after Dr. Medina gave S.C. his medical

opinion, he sent S.C. another e - mai l, inquiring further about

her symptoms in more detail. S.C. provided Dr. Medina with

additional information along with her instant messaging name.

7. Dr. Medina continued to send e - mails to S.C. and to

chat with her using instant messaging. The communi cations

became friendly and included discussions regarding friends,

music, and school.

8. S.C. provided Dr. Medina with a link to her online live

journal, which contained personal information , including her

name, age, and location and a photograph of her. The online

journal site also contained a link to her poetry site at

Geocities. Dr. Medina would leave comments on the poetry site.

9. After viewing S.C.'s photograph on her live journal,

Dr. Medina began to make flirtatious comments to S.C. such as

"AW W you're cute." Dr. Medina also offered to buy S.C. clothing

and a compact disc player.

10. Dr. Medina told S.C. about his work as an orthopedic

surgeon, including that he frequently traveled to foreign

countries to study new technology in orthopedic sur gery, that he

performed consulting work in Orlando, that he was rich, and that

he was located in Springhill. He sent photographs to S.C.,

including a photograph of himself with his son.

11. On Sunday, September 21, 2003, Dr. Medina sent S.C. a

message th at he was going to Orlando that day. S.C. told him

that she would be studying at a local book store in a shopping

center in Orlando that same day. S.C. was now 16 years old.

12. Dr. Medina went to the book store and found S.C.

studying. They talked a short while, and Dr. Medina offered to

take her to lunch. S.C. agreed to go, and they got into his

vehicle. Dr. Medina gave S.C. some roses, drove to downtown

Orlando, and parked on the street. Prior to going to a local

restaurant, Dr. Medina gave S.C. a kiss and tried to hold her

hand as they walked down the street. His actions made S.C. feel

awkward and confused. They ate lunch and made small talk. At

the end of the meal, Dr. Medina told S.C. that he had left his

wallet in the car, and he left to r etrieve the wallet. He came

back and paid for the meal, and they left the restaurant.

13. Dr. Medina told S.C. that he had moved the car closer

to the restaurant. They went to a parking garage and took an

elevator to an upper deck where Dr. Medina had r elocated the

car. S.C. did not see anyone else on the parking deck where his

car was parked.

14. When they reached the vehicle, Dr. Medina kissed S.C.

and she turned away. He opened the back door of the car and

asked S.C. to get in the backseat while he got something. She

did as he requested. Dr. Medina got into the backseat with S.C.

and tried to kiss her. She told him that she did not want to

kiss. He then placed his hands on her stomach, lifted up her

shirt, moved his hands under her bra and touch ed her breasts,

and then unzipped her pants. S.C. told him that she did like

what he was doing, but he continued.

15. Dr. Medina put his fingers inside S.C.'s panties and

digitally penetrated her. He then pulled off his clothes down

to his underwear, pu t on a condom, and partially inserted his

penis in her vagina. S.C. kept trying to scoot away from Dr.

Medina, telling him that she did not want to do anything and

that she needed to be somewhere to meet her friends. He stopped

and drove her back to the shopping center, where he left her.

16. Following her encounter with Dr. Medina, S.C. put a

block on her computer to prevent Dr. Medina from communicating

with her via instant messaging. However, she did continue to

receive e - mails from Dr. Medina. The content of his

communications changed drastically after the incident in the

parking lot. He began to send pornographic pictures to her,

including an image of a male genitalia, which he told S.C. was

of him.

17. Sometime prior to January 2004, the block w hich had

been placed on S.C.'s instant messaging was removed, and

Dr. Medina started to communicate with S.C. again via instant

messaging.

18. In early January 2004, S.C.'s stepmother, Mrs. S.E.C.,

accessed S.C.'s e - mail account and discovered that por nographic

photographs and sexually explicit comments were being sent to

S.C. from [e-mail]. Mrs. S.E.C. researched the e - mail

address and learned that the address belonged to Dr. Medina.

Mrs. S.E.C. contacted the Florida Department of Law Enforce ment

(FDLE) and reported that someone was sending her teenage

daughter e - mails containing pornographic photographs and

sexually explicit comments.

19. Denise Nevers, an agent for FDLE, responded to

Mrs. S.E.C.'s complaint. Ms. Nevers subpoenaed records from AOL

and confirmed that the e - mail account of [e-mail]

belonged to Dr. Medina. A background check on Dr. Medina

revealed that he had an internet web site for his business,

Medina Orthopedics and Sports Medicine. The web site listed the

office e - mail as [e-mail].

20. On January 7, 2004, Mrs. S.E.C. logged on to her

computer to check her step - daughter S.C.'s e - mails and signed

onto the AOL instant messenger. While she was logged on,

Mrs. S.C. received an instant message from Dr. Med ina as

luvortho and decided to pose as S.C. and chat with the message

sender. Dr. Medina asked her why S.C. was home from school, and

Mrs. S.E.C. replied that she was sick. Dr. Medina told her that

she needed an antibiotic and volunteered to call in a

pr escription for her. During his conversation with Mrs. S.E.C.,

Dr. Medina wrote: "i can still feel uuu, from the last, was the

besttt, I know you were scaredd, but u felt so good, did u feel

me a lil...too" and "was in u for a lil while, did you know

that , yeahh u have tooo, ill make sure of it k, u are too

precious to me, to get u hurt."

21. Ms. Nevers interviewed S.C. on January 8 and 9, 2004.

S.C. told Ms. Nevers that she and Dr. Medina had had sexual

contact in September 2003 and that he had been sen ding her

sexually explicit material. Between January 9, 2004, and

January 18, 2004, Dr. Medina continued to send S.C. e - mails and

instant messages containing sexually explicit comments and

photographs. Ms. Nevers was present when these e - mails were

bein g opened by S.C. and was present while S.C. drafted her

responses and sent them back to Dr. Medina.

2 2 . A search warrant was issued to search Dr. Medina's

office, and Dr. Medina gave permission to have his home computer

searched. Dr. Medina's computers s howed that he had been

sending the sexually explicit e - mails to S.C. from his home and

office computers. A search of the computers also revealed links

to a multitude of web sites which appeared to cater in

pornography, including teen pornography.

2 3 . On or about December 1, 2004, in case number 48 - 04 - CF -

871 - O/A in the Circuit Court of the Ninth Judicial Circuit in

and for Orange County, Florida, Dr. Medina pled guilty to

engaging in sexual activity with a person 16 or 17 years of age,

and was sentenced to one year in jail, followed by five years of

sex - offender supervised probation, to be followed by ten years

of administrative probation.

2 4 . In addition to providing S.C. with medical advice

concerning her collarbone in June 2003, Dr. Medina also gave

S.C . medical advice during his communications with her between

June 2003 and January 2004. He answered S.C.'s questions

concerning a cyst on her neck that was found when a MRI was

done; and gave advice about being a blood donor; and provided

directions on ge tting over what he suspected were S.C.

allergies, including drinking fluids, taking Nyquil, using a

nasal spray, taking Vitamin C, and drinking orange juice.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).

2 6 . The Department has the burden to establish the

allegation in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

2 7 . The Department has alleged that Dr. Medina violated

Subsection 456.072(1)(u), Florida Statutes, which provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(u) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

2 8 . Subsection 456.063(1), Florida Statutes, provides:

Sexual misconduct in the practi ce of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate

family member, guardian, or representative

of the pati ent or client in, or to induce or

attempt to induce such person to engage in,

verbal or physical sexual activity outside

the scope of the professional practice of

such health care profession. Sexual

misconduct in the practice of a health care

profession i s prohibited.

2 9 . The Department alleged that Dr. Medina violated

Subsection 458.331(1)(c), Florida Statutes, which provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine.

* * *

(j) Exercising in fluence 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.

* * *

(nn) Viola ting any provision of this

chapter or chapter 456, or any rules adopted

pursuant thereto.

30 . The Department alleged that Dr. Medina violated

Florida Administrative Code Rule 64B8 - 9.008 , which provides:

(1) Sexual contact with a patient is sexual

miscon duct and is a violation of Section

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 is not limited to:

(a) Sexual behavior or involvement with a

patient including verbal or p hysical

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.

(b) Sexual behavior or involvement with a

patient not actively receiving treatment

from the physician, including verb al or

physical behavior or involvement which meets

any one or more of the criteria in paragraph

(2)(a) above and which

1. Results from the use or exploitation of

trust, knowledge, influence or emotions

derived from the professional relationship;

2. Misu ses privileged information or access

to privileged information to meet the

physician's personal or sexual needs;

3. Is an abuse or reasonably appears to be

an abuse of authority or power.

* * *

(4) The determination of when a person is a

patient for p urposes 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 receiving treatment

or professio nal 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.

(5) The mere passage of time since the

patient's last visit to the physician is not

solely determinative of whether or not the

physician - patient relationship has been

terminated. Some of the factors considered

by the Board in determining whether the

physician - patient relationship has

terminated include, but are not limited to,

the following:

(a ) Formal termination procedures;

(b) Transfer of the patient's case to

another physician;

(c) The length of time that has passed

since the patient's last visit to the

physician;

(d) The length of the professional

relationship;

(e) The extent to which the patient has

confided personal or private information to

the physician;

(f) The nature of the patient's medical

problem;

(g) The degree of emotional dependence that

the patient has on the physician;

(6) Sexual conduct between a physician and

a former patient after a termination of the

physician - patient relationship will

constitute a violation of the Medi c al

Practice Act if the sexual contact is a

result of the exploitation of trust,

knowledge, influence, or emotions, derived

from the professional rela tionship.

(7) A patient's consent to, initiation of,

or participation in sexual behavior or

involvement with a physician does not change

the nature of the conduct nor lift the

statutory prohibition.

* * *

(9) Upon a finding that a physician has

committ ed unprofessional conduct by engaging

in sexual misconduct, the Board will impose

such discipline as the Board deems necessary

to protect the public. The sanctions

available to the Board are set forth in Rule

64B8 - 8.001, F.A.C., and include restriction

or limitation of the physician's practice,

revocation or suspension of the physician's

license.

31 . In order to establish a violation of Subsections

456.072(1)(u), 458.331(1)(j), and 458.331(1)(nn), Florida

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

Department must establish that a physician - patient relationship

existed between Dr. Medina and S.C. Dr. Medina argues that no

physician - patient relationship existed because Dr. Medina never

did a physical examination of S.C., did not have me dical records

for S.C., and never saw S.C. in his office. His argument is

without merit.

3 2 . Subsection 458.305(3), Florida Statutes (2002 and

2003), defines the "practice of medicine" as the "diagnosis,

treatment, operation, or prescription for any huma n disease,

pain, injury, deformity, or other physical or mental condition."

Dr. Medina was practicing medicine when he gave S.C. a second

opinion concerning her collarbone. A physician - patient

relationship was established when Dr. Medina responded to S.C .'s

medical inquiry with a medical opinion. He continued to give

her medical advice from June 2003 to January 2004, including

advice about a cyst, the donating of blood, and remedies for

allergies. He also offered to write a prescription for S.C. for

ant ibiotics when he was talking to Mrs. S.E.C. in January 2004,

while he thought he was talking to S.C. instead of her

stepmother. Thus, the Department has established that a

physician - patient relationship existed between Dr. Medina and

S.C.

3 3 . The Departm ent has established by clear and convincing

evidence that Dr. Medina is guilty of sexual misconduct in the

practice of medicine. He had physical sexual contact with S.C.

in September 2003 and sent her sexually explicit pictures and

comments from September 2003 through January 2004. He used the

physician - patient relationship as an entrée to engage in sexual

misconduct with S.C. Thus, the Department has established that

Dr. Medina violated Subsections 456.072(1)(u), 458.331(1)(j),

and 458.331(1)(nn), Flori da Statutes, and Florida Administrative

Code Rule 64B8 - 9.008.

3 4 . The Department has established by clear and convincing

evidence that Dr. Medina violated Subsection 458.331(1)(c),

Florida Statutes, by pleading guilty to engaging in sexual

activity with a person of 16 or 17 years of age. The crime

directly relates to the practice of medicine because Dr. Medina

first encountered S.C. when she was asking for a second medical

opinion. He used her inquiry as a means of ingratiating himself

with her to fulfil l his own sexual desires. The crime also

relates to his ability to practice medicine. His actions show a

lack of good judgment. Dr. Medina was not attempting to have an

affair with a consenting adult he met outside his practice of

medicine; he was seduc ing a 16 - year - old child, who innocently

had requested a medical opinion from him. His actions clearly

show that he is not to be trusted with adolescent females.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMME NDED that a final order be entered finding

that Dr. Medina violated Subsections 456.072(1)(u),

458.331(1)(c), 458.331(1)(j),and 458.331(1)(nn), Florida

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

revoking his license.

DONE AND ENTERED th is 4th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

Susan B. Harrell

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 Ad ministrative Hearings

this 4th day of January, 2007.

ENDNOTE

1/ All references to Subsections 456.072(1)(u), 458.331(1)(j),

and 458.331(1)(nn), Florida Statutes, are to the 2002 and 2003

versions. All references to Subsect ion 458.331(1)(c), Florida

Statutes, are to the 2004 version.

COPIES FURNISHED:

April Dawn Skilling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Mark D. Rodriguez, Esquire

Mark D. Rodriguez, P.A.

508 We st Main Street

Inverness, Florida 34450

Adrian Isidore Jose Medina

27080 Lambeth Drive

Brooksville, Florida 34602

Dr. M. Rony Francois, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, G eneral Counsel

Department 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 Cler k

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 exceptions

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.