10-003101PL Department Of Health, Board Of Medicine vs. Carlos A. Cohen, M.D. Status: Closed Recommended Order on Tuesday, September 14, 2010.

Summary: Respondent committed sexual misconduct in the practice of medicine when he engaged in sexually aggressive behavior vis-a`-vis a nurses's assistant whom he had given medical assistance, thereby establishing a physician-patient relationship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE )

)

Petitioner, )

) Case No. 10 - 3101PL

vs. )

)

CARLOS A. COHEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 7, 2010, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Departm ent of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Rosemarie Antonacci, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

515 East Las Olas Boulevard, Suite 1000

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Respondent is a physician . In his office one morning he

struck up a conversation with, and thereafter checked the blood

pressure of, a nurse's assistant who, at the time, was working

under contract for one of Respondent's patients. Respondent

invited the nurse's assistant to come back to his office later,

by herself, so that he could recheck her blood pressure , and she

accepted his offer . Following her return to the docto r's

office , Respondent began to engage in sexual activities with the

woman, but she refused to reciprocate his advances. The issue

in this case is whether Respondent committed sexual misconduct

with a patient, a patient's guardian, or a patient's

represen tative.

PRELIMINARY STATEMENT

On October 23, 2009 , Petitioner Department of Health issued

an Administrative Complaint against Respondent Carlos A. Cohen,

M.D . Petitioner alleged that Respondent had engaged in sexual

misconduct with a patient. Dr. Co hen timely req uested a formal

hearing, and on December 15, 2009, Petitioner filed the

pleadings with the Division of Administrative Hearings, where an

Administrative Law Judge was assigned to preside in the matter.

The final hearing was to have been held on March 4, 2010.

On February 24, 2010, however, Petitioner filed a Motion to

Relinquish Jurisdiction, to enable a probable cause panel of the

Board of Medicine to revisit the charges against Dr. Cohen. The

motion, which was opposed, was granted on March 2, 2010.

On March 26, 2010, Petitioner issued an Amended

Administrative Complaint against Dr. Cohen, which included

allegations supporting an alterative theory of the case, namely

that Respondent had engaged in sexual misconduct with a

patient's guardia n or representative. Dr. Cohen again disputed

the allegations, and on June 4, 2010, Petitioner filed the

Amended Administrative Complaint with the Division of

Administrative Hearings.

The final hearing took place on July 7, 2010, as scheduled ,

with both parties present. Petitioner called as witnesses

Delray Beach Police Detective Troy Bear; Joseph Bensmihen, who

owned the nurse registry for which the alleged victim worked;

and M. L., the alleged victim. In addition, Petitioner's

Exhibit 1 was received i n evidence without objection.

Dr. Cohen testified on his own behalf and presented no

other witnesses. Respondent 's Exhibit 1 was admitted into

evidence without objection.

The two - volume final hearing transcript was filed on

July 22, 2010 . Proposed Reco mmended Orders were due , and were

filed , on August 3, 2010, the original deadline having been

enlarged by one day at Respondent's (unopposed) request. Each

party's Proposed Recommended Order has been considered.

Unless otherwise indicated, citations to t he Florida

Statutes refer to the 200 9 Florida Statutes.

FINDINGS OF FACT

1. Dr. Carlos A. Cohen ("Cohen") is a board - certified

infectious disease specialist who was, at all times relevant to

this case, licensed to practice medicine in the State of

Florid a. His office is located in Palm Beach County, and he has

privileges at several hospitals in that area .

2. Petitioner Department of Health (the "Department") has

regulatory jurisdiction over licensed physicians such as Cohen .

In particular, the Depar tment is authorized to file and

prosecute an administrative complaint against a physician , as it

has done in this instance, when a panel of the Board of Medicine

has found that probable cause exists to suspect that the

physician has committed a disciplinab le offense.

3. The events that gave rise to this case occurred on

July 5, 2009. On that Sunday morning, as on other weekend days,

Cohen's office was open so that patients needing antibiotic

infusion therapy could receive treatment. Cohen himself did n ot

routinely attend to patients in his office on weekends. Rather,

nurses administered the infusion therapy on his or ders. Cohen

did, however, make rounds at the local hospital s on weekends

when he was on call, as he happened to be on this particular

day .

4. At some point during the morning, Cohen's wife called

him on his cell phone and told him t hat the power was out at his

office. Cohen does not clearly remember where he was when he

received this call, but upon hearing that his office was without

ele ctricity , he stopped what h e was doing and headed there to

investigate.

5. Meantime, a nurse's assistant named "M. L." was driving

"Jane Doe," an elderly patient of Cohen's, to the doctor's

office for infusion therapy. M. L. worked for a nurse registry

that provided licensed caregivers on a contract ual basis to

persons needing assistance, such as Jane Doe. M. L. had not met

Jane Doe before that morning (and, it turned out, would not see

her again after July 5, 2009). M. L.'s job that day was to help

Ja ne Doe get dressed, take her to the doctor's office, bring her

back home, prepare a meal or snack for her, provide physical

assistance as needed to allow Jane Doe to complete her daily

activities, and generally watch out for the patient's safety.

M. L. ha d not been informed o f Jane Doe's medical condition and

was not authorized to make medical decisions on Jane Doe's

behalf. She neither had nor needed access to Jane Doe's medical

records.

6. Cohen arrived at his office , coincidentally, at about

the sa me time as M. L. and Jane Doe. All three were outside,

walking towards the entrance to the building, when an electrical

transformer e xploded overhead , making a loud noise. This

startling event unsettled M. L.

7. Once inside, Jane Do e was taken back for treatment.

M. L. remained in the front reception area to wait for Jane Doe

to return . Cohen soon entered this front room as well, to wait

for the arrival of a crew from the electric company, which, he

had been told, was on its way to fix the problem wi th the

transformer. As they waited together , M. L. deduced that Cohen

was a doctor from the fact that others were addressing him by

that title.

8. In time, Cohen took a seat next to M. L., and the two

struck up a conversation. M. L. 's primary languag e is Haitian

Creole , and she has a limited command of English. Cohen's

native tongue is Spanish, but he is fluent in English. The two

communicated in English.

9. M. L. told Cohen that the explosion earlier had made

her nervous. She also mentioned to h im that she needed medicine

to control her blood p ressure, which she had forgotten to take

that morning. Cohen offered to take M. L.'s blood pressure, and

she agreed to let him do so. To accomplish this, Cohen led

M. L. out of the reception area and int o a hallway leading to

the examination rooms. While M. L. sat on a stool in the

hallway, Cohen took her blood pressure, which was elevated.

Cohen informed M. L. that her blood pressure was high.

10. In the course of their conversation, M. L. made Cohen

aware that she would be off duty that afternoon. Cohen needed

to complete his rounds at the hospitals, but he, too, would be

free later in the day. Cohen invited M. L. to return to his

office, alone, at 4:00 p.m. so that he could recheck h er blood

press ure. 1 Cohen knew that no one else would be in the office at

that time. M. L. accepted the doctor's invitation.

11. Cohen and M. L. then went their separate ways. Cohen

remained at the office for a while, until the electricity came

back on, after which he left to complete his rounds. M. L. took

Jane Doe home and finished her shift.

12. The two met again that afternoon, as planned, at

Cohen's office around 4:00 p.m. Once inside the office, where

the two were alone, Cohen took M. L.'s blood pressure . This

time, the numbers were normal , and Cohen so informed M. L .

M. L. stood up to shake Cohen's hand, thank him , and say

goodbye . Suddenly, Cohen pulled M. L. into an embrace, which

she did not welcome. Cohen continued to force himself upon

M. L. , pinning her against the wall. He kissed her, sucked her

breasts, and exposed his penis, demanding that she "kiss" it.

All of this was against M. L.'s will. 2

13. M. L. managed to break free, and she fled Cohen's

office. 3 Cohen chased after her. They g ot in their respective

cars and drove away, M. L. heading home, Cohen following her in

hot pursuit. 4 When she arrived at her house, Cohen pulled up

behind her. M. L. went inside, and Cohen left without further

incident.

Ultimate Factual Determinations

1 4 . The evidence is insufficient to establish, clearly and

convincingly, that M. L. was either a "guardian" or

"representative" of Jane Doe as those terms are used in Secti on

456.063(1), Florida Statutes , which proscribes "[s]exual

misconduct in the prac tice of a health care profession." Even

if M. L. were in fact Jane Doe's proxy, however, the evidence is

insufficient to establish that Cohen had a professional

relationship with M. L. qua Jane Doe's proxy. To the contrary,

the evidence clearly and convi ncingly proves that the relevant

professional relationship was that which existed between Cohen

and M. L. in her own right; that is, in all of her relevant

dealings with Cohen, M. L. acted exclusively in her personal

capacity and on her own behalf, no one else's. Thus, Cohen is

not guilty of engaging in sexual misconduct with a patient's

guardian or representative.

15. Cohen provided medical attention to M. L. on two

separate occasions while acting in his professional capacity as

a physician. On both oc casions, Cohen was in his office, a

place where his authority as a doctor is greatest. Moreover,

because Cohen was in his office, surrounded by the tools of his

trade, M. L. reasonably could have expec ted that the doctor

would do more than simply take her blood pressure if, in his

professional judgment based on her blood pressure or other

reasons, he determined that she needed additional treatment.

Such an expectation was especially justified in this instance

because Cohen knew that M. L. suffered from hy pertension when he

invited her to return to his office for the purpose of

recheck ing her blood pressur e, which was elevated that morning

because (as Cohen also knew) M. L. had forgotten to take her

medicine and had been startled by an explosion. In this

c ontext, M. L. was reasonably entitled to place her trust and

confidence in Cohen, and to rely upon his special expertise and

judgment as a physician in determining whether she was alright .

16. As it happened, Cohen determined, after rechecking

M. L.'s blood pressure, that further medical intervention was

unnecessary. This was, in fact, a professional judgment upon

which M. L. reasonably could (and apparently did) rely . A

doctor's decision that all is well, even if based on little more

than a routine procedure such as a blood pressure test, is an

exercise of professional judgment, no less than if the doctor

concludes that something is amiss and orders additional tests or

treatment. It was this exercise of professional judgment that

distinguishe d Cohen 's taking of M. L.'s blood pressure from,

e.g. , M. L.'s performing a self - test at home or in a drugstore.

17. The evidence establishes, clearly and convincingly,

that , a lthough the physician - patient relationship was casual or

informal in nature, M. L. w as nevertheless a patient of Cohen's

for purposes of the statutes which prohibit a doctor from

engaging in sexual activity with a patient. It is therefore

determined, as a matter of ultimate fact, that Cohen is guilty

of engaging in sexual misconduct with a patient, which is a

disciplinable offense pursuant to Sections 456.072(1)(v) and

458.331(1)(j), (nn), Florida Statutes.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pu rsuan t to

Sections 120.569, and 120.57(1), Florida Statutes (2010) .

19. The Department has brought three charges against

Cohen. All three are founded on the same conduct, namely

Cohen's sexually aggressive behavior vis - à - vis M. L. The

Department contend s, alternatively, that M. L. was either: (a)

a "guardian" or "representative" of Cohen's patient Jane Doe; or

(b) a patient of Cohen's in her own right. The undersigned

rejects theory (a) and accepts theory (b), for the reasons that

follow.

20. A procee ding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prov e the charges against Cohen by clear and

convincing evidence. Department of Banking & Fin., Div. of Sec.

& Investor Protection v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nai r v. Department of Business &

Professional Regulation, Bd. of Medicine , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

21 . Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definiti on of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credi ble;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking 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.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

D avey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclud e evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

22. In Count I of the Amended Administrative Complaint,

the Department ch arged Cohen under Section 456.072(1), Florida

Statutes, which provides in pertinent part as follows:

(1) The following acts shall constitute

grounds for which . . . disciplinary actions

. . . may be taken:

* * *

(v) Engaging or attempting to en gage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

Section 456.063(1), Florida Statutes, defines "sexual misconduct

in the practice of a health care profession" as meaning a

violation of the professional relationship

through which the h ealth 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 patient 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 is

prohibited.

(Emphasis added.)

23 . Being penal in nature, the foregoing statutes "must be

construed strictly, in favor of the one against whom the penalty

would be imposed." Munch v. Department of Professional

Regulation, Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st

DCA 1992).

24. The terms "guardian" and patient's "represen tative"

are not defined in Section 456.063(1), Florida Statutes . The

undersigned concludes, however, that thes e terms a re technical

in nature because they each have acquired a peculiar meaning in

the law. Moreover, the respective technical meanings of th ese

terms are appropriate to the statute in question. The law

requires, therefore, that these legal terms of art be given

their technical meanings, unless a contrary intention is plainly

shown , which is not the case here . See Ocasio v. Bureau of

Crimes C ompensation, Div. of Workers Compensation , 408 So. 2d

751, 752 - 53 (Fla. 3d DCA 1982) ; see also Tampa v. Thatcher Glass

Corp. , 445 So. 2d 578 , 579 n.2 (Fla. 1984)( " The presumption

favoring the 'popular signification' of technical terms applies

unless the pr ofession to which the technical term belongs is the

legal profession. Terms of special legal significance are

presumed to have been used by the legislature according to their

legal meanings." .

25. The relevant technical meanings of the words in

question properly can be ascertained from other statutes, on the

principle that " when statutes employ exactly the same words or

phrases, the legislature is assumed to intend the same meaning."

Schorb v. Schorb , 547 So. 2d 985, 987 (Fla. 2d DCA 1989) ,

disapproved , Coleman v. Coleman , 629 So. 2d 103 , 105 (Fla.

1993)(noting that the Schorb court's analysis would have been

correct had the statute at issue been ambiguous ). The term

"guardian " is defined in Section 744.102(9), Florida Statutes,

to mean "a person who ha s been appointed by the court to act on

behalf of a ward ' s person or property, or both." It is

concluded that this is what the legislature intended the term

"guardian" to mean in the context of Section 456.063(1), Florida

Statutes. As stated above, the D epartment failed to prove that

M. L. was, in fact, Jane Doe's guardian.

26. The term "patient representative" is defined in

Section 408.051(2)(g), Florida Statutes, as follows:

"Patient representative" means a parent of a

minor patient, a court - appointed guardian

for the patient, a health care surrogate, or

a person holding a power of attorney or

notarized consent appropriately executed by

the patient granting permission to a health

care facility or health care provider to

disclose the patient ' s health ca re

information to that person. In the case of

a deceased patient, the term also means the

personal representative of the estate of the

deceased patient; the deceased patient ' s

surviving spouse, surviving parent, or

surviving adult child; the parent or

gua rdian of a surviving minor child of the

deceased patient; the attorney for the

patient ' s surviving spouse, parent, or adult

child; or the attorney for the parent or

guardian of a surviving minor child.

It is concluded that the foregoing definition illumin ates the

legislative intent with regard to the meaning of the term

"representative of the patient" as used in Section 456.063(1),

Florida Statutes. As stated above, the Department failed to

prove that M. L. was, in fact, a "representative of the patient"

referred to herein as Jane Doe.

27. Further, it is clear from the plain language of

Section 456. 063 (1), Florida Statutes, that, to commit sexual

misconduct in violation of this section, the health care

professional must mis use "the professional relations hip" between

himself and the patient or the patient's proxy as a proxy . In

this case, however, the Department failed to prove the existence

of any relationship, professional or otherwise, between Cohen

and M. L. qua Jane Doe's proxy (assuming M. L. served Jane Doe

in a representative capacity). The only relevant "professional

relationship " here was that which existed between Cohen and

M. L. as M. L. Thus, even if M. L. were a "guardian" o r

"representative" of Jane Doe, the evidence yet would be

insuffic ient to establish that Cohen committed "sexual

misconduct in the practice of a health care profession" against

a patient's guardian or representative.

28. In Counts II and II I of the Amended Administrative

Complaint, the Department charged Cohen , respect ively, under

Subsections (j) and (nn) of Section 458.331(1), Florida

Statutes, which provide as follows:

(1) The following acts constitute grounds

for . . . disciplinary action [ : ]

* * *

(j) Exercising influence within a patient -

physician relati onship 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) Violating any provision of this

chapte r or chapter 456, or any rules adopted

pursuant thereto.

29. The particular provision of C hapter 458 that the

Department accused Cohen of having violated (thereby allegedly

committing a disciplinable act pursuant to Section

458.331(1)(nn)) is Section 458 .329, Florida Statutes, which

provides as follows:

The physician - patient relationship is

founded on mutual trust. Sexual misconduct

in the practice of medicine means violation

of the physician - patient relationship

through which the physician uses said

r elationship to induce or attempt to induce

the patient to engage, or to engage or

attempt to engage the patient, in sexual

activity outside the scope of the practice

or the scope of generally accepted

examination or treatment of the patient.

Sexual miscon duct in the practice of

medicine is prohibited.

30. Florida Administrative Code Rule 64B8 - 9.008 amplifies

the foregoing statutory provisions relating to sexual misconduct

in the practice of medicine. The Rule provides in relevant part

as follows:

(1) Sexual contact with a patient is

sexual misconduct and is a violation of

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

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but it is not limited to:

(a) Sexual behavior o r involvement with a

patient including verbal or physical

behavior which

1. May reasonably be interpreted as

romantic involvement with a patient

regardless of whether such involvement

occurs in the professional setting or

outside of it;

2. May reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. May reasonably be interpreted by the

patient as being sexual.

(b) Sexual behavior or involvement with a

patient not actively recei ving treatment

from the physician, including verbal 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

deri ved from the professional relationship;

2. Misuses privileged information or

access to privileged information to meet the

physician ' s personal or sexual needs; or

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 purposes of this rule is made

on a case by case basis with consideration

given to the nature, extent, and context of

the professional relationship between the

physician and the person. The fact that a

person is not actively receiving treatment

or professional services from a physician is

not determinative of this issue. A person is

presumed to remain a patient until the

patient physician - relationship is

terminated.

* * *

(7) A patient ' s con sent 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

committed unprofessional condu ct 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 phys ician ' s practice,

revocation or suspension of the physicianÓs

license.

31. To support a charge of sexual misconduct in the

practice of medicine, the physician - patient relationship may be

an informal one, as here. For example, i n Agency for Health

Care Administration v. Lortz , DOAH Case No. 96 - 0793, 1996 Fla.

Div. Adm. Hear. LEXIS 3252 (Aug. 13, 1996) , a young woman told a

doctor with whom s he was casually acquainted but had no prior

professional relationship that "if he would like to see her

naked , " he could perform a "physical examination" upon her,

which she needed "because she was moving to Australia ." Id. at

*4 . The doctor agreed to perform the "physical" at his home.

By so agreeing , it would later be determined, the doctor "formed

a physician/pat ient relationship with [the young woman] at that

time." Id . The couple eventually settled on a date , and in due

course the woman and her "little dog" arrived at the doctor's

doorstep; she "was carrying a beer, a bottle of wine, and a box

of chocolates." Id. at *5 - *6. Based on the ensuing events,

which ended badly after the woman bit the doctor's penis,

leading to an altercation, the doctor was found guilty of, among

other things, sexual misconduct in the practice of medicine.

The finding that a "physic ian - patient relationship did exist" as

soon as the doctor agreed to "perform the physical examination

in his home" was subsequently upheld on appeal. See Lortz v.

Department of Health , 700 So. 2d 383, 384 n.7 (Fla. 1st DCA

1997).

32. Consider the facts of this case as compared to those

of Lortz . Here, Cohen offered to check a hypertensive woman's

blood pressure in his office upon learning that she had

forgotten to take her medicine that morning and that she was

still nervous as a consequence of having b een nearby , a short

time earlier , when a n electrical transformer exploded. Because

the woman's blood pressure was elevated, Cohen invited her back

to his office later in the day for a follow - up test , for which

there was at least some medical indication . In Lortz , by

contrast, a doctor agreed to physically "examine" a "twent y - two

year old college student" 5 in his home, ostensibly so that she

could obtain a visa to move to Australia. The doctor's

agreement in Lortz to perform a "physical examination" on th e

young woman gave the arrangement a sufficient patina of medical

purpose to support the determination that the woman was a

"patient" of the doctor , even though the circumstances as a

whole suggested that their relationship was predominantly social

in natu re . The facts of the instant case , in sum, form a firmer

foundation for the determination that a physician - patient

relationship existed than those of Lortz because here there was

more than a veneer of medical purpose: M. L. actually suffered

from a disea se which Cohen offered to (and did) monitor, albeit

on an informal basis, in his office no less, not his home.

33. It is concluded that the law supports the

determinations of ultimate fact set forth above, including the

finding that M. L. was Cohen's p atient, which establish Cohen's

guilt on the charge of sexual misconduct in the practice of

medicine .

34. The Board of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001. The range of

penalties for a first offense comprising a single violation of

the statutes prohibiting sexual misconduct in the practice of

medicine is set forth in Rule 64B8 - 8.001(2)(j) as follows:

From one (1) year suspension to be followed

b y a period of probation and a reprimand,

100 to 200 hours of community service, and

an administrative fine of $5,000.00 to

revocation or denial and an administrative

fine of $10,000.00.

35. Aggravating and mitigating circumstances are set forth

in Rule 64B8 - 8.001(3). In addition, Rule 64B8 - 8.001(4)

prescribes aggravating circumstances that, if found to have been

present in connection with the commission of sexual misconduct

in the practice of medicine, authorize the Board of Medicine to

consider revocat ion as an appropriate penalty. Neither party

has urged that either a harsher or less stringent penalty should

be imposed based upon the application of any of the aggravating

and mitigating circumstances. The undersigned nevertheless has

considered all of these factors and concludes that none warrants

a deviation from the recommended penalties for a first offense

involving a single act of sexual misconduct.

36. The Department, however, has proposed , without

explanation, a set of penalties that does not include a one - year

suspension and hence is more lenient than the minimum set forth

in Rule 64B8 - 8.001(2)(j). While the undersigned is reluctant to

recommend a more severe punishment than the prosecutor seeks, in

this case he is unable to identify circumst ances that justify a

downward departure from the minimum discipline set forth in the

penalty guidelines. Therefore, it is recommend ed that the Board

of Medicine impose penalties consistent with Rule 64B8 -

8.001(2)(j).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order finding Cohen guilty of committing a single act of sexual

misconduct with a patient, in violation of Section 458.329,

Florida Statutes. Because this is Cohen's first such offense,

it is further RECOMMENDED that the Board of Medicine: (a)

suspend Cohen's medical license for one year , to be followed by

both (i) a period of two years' probation , one condition of

which should be the completion of five hou rs of continuing

medical education in risk management, and (ii) a reprimand

against Cohen's license; (b) require that Cohen complete 100

hours of community service; and (c) impose an a dministrative

fine of $5,000.00.

DONE AND ENTERED this 14th day of S eptember , 20 1 0, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 14th day of September , 20 10 .

ENDNOTES

1 / Cohen claims that he asked M. L. to return to his office, not

for another blood pressure test, but so that she could give him

her name and phone number, which information he, in turn, could

pass alo ng to patients of his who might be interested in

retaining M. L. as a private - duty nurse's assistant. At some

point Cohen did, in fact, suggest to M. L. that he could refer

business prospects to her, and M. L. did provide Cohen with her

name and phone num ber when the two met for the second time, on

Sunday afternoon. M. L. denies, however, that Cohen mentioned

to her in the morning that he could be a source of referrals,

but instead insists that he raised this possibility for the

first time in the afternoo n. This particular dispute is

ultimately immaterial because the undersigned rejects as

incredible Cohen's testimony that the only ostensible reason for

inviting M. L. to return to his office was to obtain readily

available information that he easily could have taken on the

spot ÏÏ or been provided later by telephone. M. L., in short, did

not need to see Cohen again to give him her name and number; she

did, however, need to come back to his office if he were going

to recheck her blood pressure. The undersig ned credits M. L.'s

testimony that Cohen invited her to return in the afternoon for

the purpose of rechecking her blood pressure, which he had just

found to be elevated.

2 / The undersigned rejects as incredible Cohen's testimony that

he and M. L. engaged in consensual sexual activities. While the

undersigned accepts that Cohen possibly believed or hoped M. L.

would respond favorably to his forceful advances, M. L.'s

testimony that she was not a willing participant was clear and

convincing.

3 / The under signed rejects as incredible Cohen's testimony that

he called it quits when M. L. asked him for money to help pay

her bills.

4 / The undersigned rejects as incredible Cohen's testimony that

M. L. flirted with him as they were driving. Likewise rejected

i s Cohen's testimony that he: (a) followed M. L. home to

instill in her the hope that he would call her later to arrange

a tryst at that location, having learned how to get there; and

(b) believed such hope of a future liaison would cause M. L. not

to be u pset with him for prematurely terminating their previous

sexual encounter, thereby lessening the possibility that M. L.

might falsely accuse him of having attempted to rape her.

5 / Lortz , 700 So. 2d at 384.

COPIES FURNISHED :

Greg S. Marr, Esquire

Department of Health

4052 Ba ld Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Rosemarie Antonacci, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon & Bonner, P.A.

515 East Las Olas Boulevard, Suite 1000

Fort Lauderdale, Florida 33301

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Coun sel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.