10-003082 Medical Examiners Commission vs. Marie A. Herrmann, M.D. Status: Closed Recommended Order on Wednesday, December 1, 2010.

Summary: Petitioner did not prove by clear and convincing evidence that Respondent failed to ensure that next-of-kin was notified of a homeless decedent's death, under the factual circumstances presented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEDICAL EXAMINERS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3082

)

MARIE A. HERRMANN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 21, 2010 , a duly - noticed hea ring was held via

video teleconferencing with sites in Daytona Beach and

Tallahassee , Florida , before Lisa Shearer Nelson , an

Administrative La w Judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Joseph White, Esquire

Florida Department of Law E nforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respo ndent: Richard N. Staten, Esquire

Assistant County Attorney

County of Volusia

123 West Indiana Avenue

Deland, Florida 32720

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

Florida Administrative Cod e Rule 11G - 2.001(5)(e), as alleged in

the Administrative Complaint, and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On December 7, 2009, Petitioner filed an Administrative

Complaint against Respondent, Marie A. Herrmann, M.D., alleging

th at she violated Florida Adminis trative Code Rule 11G -

2.001(5)(e ). Respondent disputed the allegations in the

Administrative Complaint and requested a hearing pursuant to

Section 120.57(1), Florida Statutes. On June 3, 2010, the matter

was referred to the Division of Administrative Hearings for

assignment of an administrative law judge.

The case was originally schedu led to be heard on August 12,

2010. At the request of Petitioner, the matter was rescheduled

for September 21, 2010, and proceeded as schedu led. Prior to

hearing, the parties filed a Pre - Hearing Stipulation in which

they stipulated to certain facts that, where relevant, are

incorporated into the findings of fact listed below. At hearing,

Petitioner presented the testimony of Kyle Bainbridge, David

McNamara, Tara Clark, Horace Baker, and Joy Bowers - Williams.

Petitioner's Exhibits numbered 1 and 2 were admitted without

objection. Respondent testified on her own behalf and presented

the testimony of Priscilla Feller, David Siebert, and David

B urch. Respondent offered six exhibits for admission. At the

time of hearing, Respondent's Exhibits numbered 2 through 6 were

admitted, and ruling on the admission of Respondent's Exhibit

numbered 1 was deferred. Petitioner withdrew its objection to

the exhibit in its Proposed Recommended Order, and Respondent's

Exhibit numbered 1 is hereby admitted.

The proceedings were recorded and the Transcrip t was filed

with the Division of Administrative Hearings on October 5, 2010.

At the request of the parties, the deadline for submission of

Proposed Recommended Orders was extended to November 5, 2010.

Both parties timely filed their Proposed Recommended Orders,

which have been carefully considered in the preparation of this

Recommended Order. All references to Florida Statutes are to the

2008 codification.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent was, and remains, the

Medical Examiner for District Seven, which includes Volusia

County.

2. On or ab out April 13, 2009, the Deland Fire Department

responded to a scene located at 931 South Woodland Boulevard in

Deland, Florida. The body of an unidentified black male had been

discovered at that location.

3. The unidentified male was pronounced dead at t he scene,

and the District Seven Medical Examiner's Office (Medical

Examiner's Office) was notified of the body. Pursuant to Section

406.11 (1)(a) , Florida Statutes, the Medical Examiner's Office has

jurisdiction to investigate the death of a person who di es

unattended by a practicing physician or other recognized

practitioner, or under unusual circumstances. These conditions

were present with respect to this body.

4. Medical Examiner's Office investigators Tara Clark and

Robert Burch arrived at the scene and transported the decedent to

the morgue. Based upon a Florida identification card found in a

wallet with the body, decedent was presumptively identified as

Theodore Roosevelt Langston.

5. Also located with the body were some slips of paper

among Mr. Langston's personal effects, including two slips of

paper with names and numbers on them. One of those pieces of

paper contained handwritten notations stating, "Joy F. Williams,"

"sister," "Savoy Lane," "Al," "West Palm Beach, FLA," and

"33417." Also amo ng his personal effects were newspaper

clippings, customer reward cards for two grocery stores, a social

security card , and a slip of paper with power ball numbers.

6. The Medical Examiner ' s office staff photographed

Mr. Langston's personal effects and st ored them.

7. When law enforcement or the Medical Examiner's Office is

confronted with the unidentified body of a homeless person, i t is

not unusual for t he r e to be an assortment of paperwork,

clippings , a nd miscellaneous objects with the body that may o r

may not belong to the decedent . Staff at the Medical Examiner's

Office did not find the information found with Mr. Langston to be

particularly important at this point, because there was a

significant possibility that the pieces of paper in Mr.

Langston' s possession did not belong to him. Moreover,

references such as "sister" or "aunt" do not always connote a

blood relationship with the deceased and may just as likely be a

colloquial phrase.

8 . On or about April 14, 2009, an autopsy was also

performed o n the decedent. The next day, the Medical Examiner's

Office staff released the decedent's birth certificate, Florida

identification card , and a fingerprint card containing the

decedent's fingerprints to Investigator David McNamara of the

Volusia County Sh eriff's Office (VCSO). The VCSO positively

confirmed the identity of the decedent through these fingerprints

on April 15, 2009 . Confirmation of his identity also indicated

that Mr. Langston used several aliases and dates of birth.

9 . On April 16, 2009 , Investigator McNamara attempted to

locate the next of kin at the behest of Respondent or a member of

her staff, pursuant to District Seven's protocols and Florida

Administrative Code Rule 11G - 2.001.

10 . Over the next several days, Investigator McNamara

attempted unsuccessfully to locat e Mr. Langston's next of kin.

Mr. Langston had b e en classified as a career criminal.

Investigator McNamara searched jail databases, career criminal

databases, and autotrac for addresses of the decedent. No next

of kin wa s listed for Mr. Langston in any of the databases he

searched. He went to the address on the identification card and

spoke to people living at that address. From those people,

Investigator McNamara located a woman named Rose Smith, who m he

believed to be the decedent's sister. When he spoke to her,

however, she denied being Mr. Langston's sis ter, indicating that

she was a cousin. Ms. Smith gave Investigator McNamara the name

of someone living in Orlando who she believed was the decedent's

father, and sa id she would attempt to contact other family.

However, other than the possible father's name, she did not

provide to Investigator McNamara any additional names of possible

relatives.

1 1 . Investigator McNamara contacted the gentleman Ms. Smith

had identif ied, and learned that he was not related to the

deceased. However, apparently as a result of Investigator

McNamara's attempts to find relatives of Mr. Langston, t h e

decedent's uncle, Horace Baker (who lived in Palm Beach County),

received a call from his sister in Deland advising of his

nephew's death. Mr. Baker in turn called his n ie ce, Joy Bowers -

Williams, and told her that he had learned that Ms. Bowers -

Williams' brother had died.

12. Ms. Bowers - Williams was Mr. Langston's next of kin.

13. On April 2 1, 2009, Investigator McNamara completed a

form entitled Law Enforcement Notice to Medical Examiner of

Unknown Next of Kin. When he dropped the form off at the Medical

Examiner's Office, he learned that Ms. Bowers - Williams had

contacted the Medical Ex amin er's Office the day before, asking

about her brother. Investigator McNamara returned her call and

explained the circumstances regarding her brother's death and the

efforts he had made to locate next of kin. He also explained to

her the options available regarding disposition of her brother's

remains.

14. The following day, April 22, 2009, the Medical

Examiner's Office received a request for release of the body from

Arthur Mack's Funeral Home, indicating that the family wished for

his body to be transfe rred to the funeral home in Deland.

15. Normally, where there is a Notice to Medical Examiner

of Unknown Next of Kin filed, staff for the Medical Examiner's

Office would then go through a decedent's personal effects

searching for any additional informat ion that may lead to finding

a person's next of kin. At that point , the slips of paper with

writing on them, including the slip with Ms. Bowers - Williams '

name on it, would have been re - examined to determine whether

the re was additional information that wo uld help identify next of

kin for the decedent.

16. Ms. Bowers - Williams was M r. Langston's sister.

However , she was not listed as next of kin in any database in the

law enforcement and corrections systems checked. She did not

visit him while he was in jail, and had not had any contact with

him for well over six months prior to his death . While she was

upset that the Medical Examiner's Office had not called her, she

also testified that she did not have a phone.

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2002) .

1 8 . The Medical Examiners Commission within the Department

of Law Enforcement is charged with the responsibility of

investigating complaints against medical examiners for violations

identified in Section 406.075, Florida Statutes, and where

appropriate, to reprimand, place on probation, remove , or suspend

a medical examiner where a vi olation is proven.

1 9 . Petitioner is seeking to take disciplinary action

against Respondent's position as medical examiner for District 7.

Because of the penal nature of the proceeding, Petitioner bears

the burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co. , 670

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

(Fla. 1987).

20 . As stated by the Florida Supreme Court:

Clea r 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 lacking in confusion as to the

facts in issue. The evidence must b e of such

a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

21. Moreover, because proceedings providing for suspension

or removal from one's position as a medical examiner are

disciplinary proceedings, the statutes and rules for which a

violation is alleged must be strictly c onstrued in favor of

Respondent. Elmariah v. Department of Professional Regulation ,

574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Department of

Professional Regulation , 534 So. 782, 784 (Fla. 1st DCA 1988).

22 . The Administrative Complaint alleges the f ollowing:

2. On or between April 13, 2009 and

April 20, 2009, the District Seven Medical

Examiners [sic] Office received the body of

Theodore Roosevelt Langston and failed to

notify the next of kin of that fact, in spite

of information found on the body t hat would

provide names and telephone numbers for the

decedent's next of kin.

3. The actions of the Respondent did violate

the provisions of Rule 11G - 2.005(5)(e),

F.A.C., in that the Respondent failed to

ensure that the next of kin was notified

that th e medical examiner's office was

investigating the death.

23 . Section 406.075(1)(a) , Florida Statutes, authorizes a

medical examiner to be reprimanded, placed on a period of

probation, removed, or suspended for failing to comply with the

provisions of Ch apter 406 or with the rules of the Medical

Examiners Commission.

24 . The rule Respondent is charged with violating is

Florida Administrative Code Rule 11G - 2.001(5)(e), which provides

in pertinent part:

(5) If the medical examiner determines that

jurisdi ction for an investigation under

Section 406.11(1)(a) or (b),F.S., does exist,

he shall,

* * *

(e) Ensure that next of kin is notified that

the medical examiner's office is

investigating the death, when this can be

done without hi ndering the legal purpose of

the investigation and the identification and

location of the next of kin is readily

available. The contact with the next of kin,

or the attempt to contact, shall be

documented in the medical examiner's case

file, whether such contact or attempt to

contact is made by the medical examiner's

office or though other agencies such as

hospital personnel, law enforcement agencies,

funeral homes or friends of the deceased

. . . .

25 . Petitioner has not proven the allegations in t he

Administrative Complaint by clear and convincing evidence.

26 . Rule 11G - 2.001, which is strictly construed in favor of

Respondent, does not give a specific time frame for notification

of next of kin. In this case, Respondent's office initially

provid ed to law enforcement the information that appeared, at

first examination, to be relevant and reliable to determin e

whether the decedent had next of kin. The databases searched by

Investigator McNamara, which would appear to be reliable sources,

did not l ist any next of kin. The u nrebutted testimony indicated

that, upon learning that the initial search was unsuccessful, a

thorough search of the decedent's personal affects would have

been conducted in accordance with the medical examiner's standard

procedu re to determine whether additional information existed

that would be helpful. That second search became unnecessary

once Ms. Bowers - Williams called the Medical Examiner's Office and

a request for transfer of the body to the funeral home was

received.

27 . Petitioner argues that had the slip of paper with

Ms. Bowers - Williams name been furnished to Investigator McNamara

along with the decedent's Florida identification card, his next

of kin would have been located more quickly. However, under the

circumstan ces presented in this case, staff's decision to only

provide what appeared to be official documentation related to

Mr. Langston's identity was reasonable. Nothing on the slip of

paper indicated that the decedent considered Ms. Bowers - Williams

to be an "em ergency contact" person. While the slip of paper did

turn out to identify someone related to the decedent, it was just

as likely that it could have been someone totally unrelated to

him. The Medical Examiner's Office staff's decision to first

rely on mor e reliable sources of information was a reasonable

one.

28 . A different scenario would be presented if Investigator

McNamara had filed the Notice to Medical Examiner of Unknown Next

of Kin with the Medical Examiner's Office, Ms. Bowers - Williams

had not c alled about her brother, and the Medical Examiner's

Office had then failed to take any steps to examine the

decedent's personal effects for any information that might

identify next of kin. That case, however, is not presented here.

The procedure followed by the Medical Examiner's Office is not

prohibited by Florida Administrative Code Rule 11G - 2.001(5), and

is not a basis for discipline.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED :

T hat the Medica l Examiners Commission dismiss the

Administrative Complaint in its entirety.

DONE AND ENTERED this 1s t day of December , 20 1 0, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Heari ngs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1s t day of Decem ber, 20 1 0.

COPIES FURNISH ED:

Richard Staten, Esquire

123 West Indiana Avenue

Deland, Florida 32720

Joseph S. White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Glen Hopkins, Bureau Chief

Medical Examiners Commission

Florida De partment of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.