11-005995PL Department Of Health, Board Of Psychology vs. Netta Shaked, Ph.D. Status: Closed Recommended Order on Wednesday, May 23, 2012.

Summary: Petitioner failed to demonstrate that the manner in which Respondent terminated her professional relationship with marital therapy clients constitutes a departure from the minimum standards of performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PSYCHOLOGY , )

)

Petitioner, )

)

vs. ) Case No. 11 - 5995 PL

)

NETTA SHAKED, PH.D , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A final hearing was held in this case before Edward T.

Bauer, an Administrative Law Judge of the Division of

Admini str ative Hearings, on March 28 and 29 , 2012 , by video

teleconference a t sites in Tallahassee and Miami , Florida.

APPEAR ANCES

For Pet itioner: Adrienne C. Rodgers , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Mark Thomas, Esquire

Dell Graham, P.A.

203 Northeast First Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Administrative Complaint , and

if so, the penalty that should be imp osed.

PRELIMINARY STATEMENT

On September 28, 2011, Petitioner, Department of Health,

Board of Psychology, filed a two - c ount Administrative Complaint

("Complaint" ) agains t Respondent, Dr. Netta Shaked. Petitioner

alleged , in Count One of the Complaint, tha t Respondent made

disparaging and non - therapeutic comments to patients C.H. and

J.H. during marital therapy sessions, and therefore failed to

meet the minimum standards of performance, in violation of

section 490.009(1)(r), Florida Statutes. In Count Two ,

Petitioner asserted that Respondent violated the same statutory

provision by the manner in which she terminated C.H. and J.H. as

patients in August 2010.

Respondent timely requested a formal hearing to contest the

allegations, and, on November 21, 20 11, the cause was referred

to the Division of Administrative Hearings ("DOAH") and assigned

to Administrative Law Judge John G. Van Laningham. On March 26,

2012, Judge Van Laningham transferred the instant matter to the

undersigned.

Prior t o the final he aring, Petitioner filed a unilateral

prehearing stipulation, wherein it announced its intention to

abandon Count One of the Complaint.

As noted above, the final hearing was held on March 28 and

29, 2012, during which Petitioner presented the testimony o f

C.H., J.H., Dr. Charles Golden, and Respondent. Petitioner

introduced three exhibits into evidence, numbered 2, 3, and 4.

Respondent testified on her own behalf, presented the testimony

of Dr. Stephen Ragusea, and introduced one exhibit, identified

as Respondent's Exhibit 1 . The parties also introduced five

joint exhibits, numbered 1 - 5.

The final hearing transcript was filed with DOAH on

April 23, 2012. Subsequently, on April 25, 2012, Respondent

filed an unopposed motion to extend the deadline f or the

submission of proposed recommended orders to May 11, 2011, which

the undersigned granted. Both parties thereafter submitted

timely proposed recommended orders that the undersigned has

considered in the preparation of this Recommended Order.

FINDI NGS OF FACT

A. The Parties

1 . Petitioner Department of Health has regulatory

jurisdiction over licensed psychologists such as Respondent. In

particular, Petitioner is authorized to file and prosecute an

administrative complaint, as it has done in this instance, when

a panel of the Board of Psychology has found probable cause

exists to suspect that the psychologist has committed one or

more disciplinable offenses.

2. At all times relevant to this proceeding, Respondent

was a licensed psychologist in the State of Florida, having been

issued license number PY7699. Respondent first became licensed

in Florida on March 21, 2008, and has not been the subject of

prior disciplinary action by the Board of Psychology.

B. Treatment of C.H. and J.H.

3. As noted previously, the allegations in this cause

relate to Respondent's provision of marital therapy to patients

C.H. and J.H.

4. In or around May 2010, C.H. decided that it would be

beneficial to attend marital (i.e., "couples") therapy sessions

with her husb and, J.H., to whom she had been married for

approximately one year. To that end, C.H. researched nearby

providers and thereafter scheduled an office appointment with

Respondent.

5. Respondent conducted an intake session with C.H. and

J.H. on May 24, 2 010. Consistent with standard practice,

Respondent asked C.H. and J.H. to complete new client intake

forms, which were intended to gather information about the

patients' current and previous relationships, family

background s , prior mental health treatment , educational

background s , and histories of abuse, if any. While J.H.

completed the form in its entirety, C.H. refused on the basis

that some of the questions were, in her opinion, too personal

and insulting. Respondent was surprised by C.H.'s reaction, as

no client had ever voiced any objection to the intake questions,

which Respondent believed ÏÏ correctly ÏÏ were necessary and

appropriate.

6. At the conclusion of the initial session, Respondent

had significant doubts about whether a viable therapeutic

relationship could be forged in light of C.H.'s refusal to

complete the intake form, as well as other comments made by C.H.

and J.H. that reflected a mistrust of the process.

Nevertheless, Respondent and the couple subsequently agreed to a

prepaid package of 10 the rapy sessions, with each appointment

valued at the discounted rate of $140.

7. Respondent's next session with C.H. and J.H. was held

on June 15, 2010, during which Respondent suggested, among other

things, that the patients would benefit from i ndividual therapy

and that J.H. ÏÏ who had been out of work for over two years ÏÏ ramp

up his efforts to find employment. Needless to say, C.H.

reacted negatively to Respondent's advice, as did J.H., who

otherwise had been silent during the session. At that,

Respondent broached the issue of whether she was a "good fit"

for the couple and provided them with the names of two

colleagues who offered marital therapy. 1 / C.H. and J.H. elected,

nevertheless, to continue their professional relationship with

Responden t.

8. C.H. and J.H.'s following session with Respondent was

conducted on July 2, 2010. During the appointment, the couple

complained that they had made no progress in therapy, which

prompted Respondent to discuss, once again, the possible

termination of their professional arrangement. Respondent also

provided, for a second time, C.H. and J.H. with the names of

several local practitioners who offered couples therapy.

Notwithstanding the discussion of termination, C.H. and J.H.

decided to forge ahead w ith Respondent.

9. The next session was held on July 7, 2010. During the

appointment, C.H. and J.H. were largely non - responsive, which

caused Respondent to raise, for the third time, the issue of a

possible better fit with another therapist. Later i n the

session, Respondent, in an effort to engage C.H. and J.H. in the

process and move the therapy forward, challenged them to explain

why they should remain married ÏÏ a strategy that angered the

couple profoundly, but was not expressed until the following

visit.

10. C.H. and J.H.'s next office appointment was on

July 14, 2010, at the outset of which the couple ÏÏ who, in

Respondent's words, were "pissed off" ÏÏ demanded an apology and

threatened to terminate the therapy. Surprised, Respondent

explained that her strategy during the previous session was to

elicit a reaction from them regarding the positive attributes of

their relationship. Respondent also offered, for the fourth

time in as many visits, to terminate the therapy. The couple

again decided, however, to maintain their professional

relationship with Respondent.

11. After a comparatively uneventful follow - up visit the

following week, C.H. and J.H. appeared at Respondent's office on

August 2, 2010, for what would prove to be their final sessi on.

During the appointment, Respondent was troubled by C.H.'s

repeated inquiries about her perso nal life, notwithstanding

Respondent's explanation that the disclosure of su ch information

would not be appropriate . Respondent was also bothered by

J.H.'s be havior toward her, which she construed as demeaning.

Although Respondent was inclined at that point to terminate C.H.

and J.H. as clients, she did not do so because their session had

run late (another patient was waiting) and she wished to

consider the ma tter further.

12. Several days later, on August 4, 2010, Respondent took

a scheduled vacation, of which C.H. and J.H. had been informed

previously. Respondent also advised C.H. and J.H. (as well as

her other patients) that she could be reached by te lephone or e -

mail should she be needed.

13. On August 15, 2010 (two days before Respondent was set

to return), C.H. sent Respondent an e - mail, wherein she inquired

about the number of sessions that remained in the prepaid

package. Later that day, Resp ondent replied by e - mail that C.H.

should check the account statement that had been mailed to her

at the end of July or early August.

14. Two days later, on August 17, 2010, C.H. sent another

e - mail to Respondent, which read:

Yes, I received on e statem ent from you at

some point in July. We have had a number of

sessions since then, and what I'm asking for

is an updated record Î namely, how many

sessions remain in our prepaid package.

15. Having fully considered the matter of termination

during her va cation, Respondent decided, on August 18, 2010, to

end her professional relationship with C.H. and J.H. On that

date, Respondent sent an e - mail reply to C.H., which provided,

in relevant part:

Attached is your statement of account.

Based on [C.H.'s Augus t 17 e - mail], and in

addition to other therapeutic factors, I do

not believe we have a viable therapeutic

relationship. As such, I think it would be

best if we discontinue our work together.

Effective today, I am terminating our

professional relationship .

I am refunding the balance of your account

by check. You have used six of the 10

session package, at the full rate of $165

per session, yielding $410 to you.

16. During the final hearing, Respondent testified

credibly that she terminated the thera py for a variety of

reasons, such as her poor working alliance with the patients,

and that she ended the relationship by e - mail because she

believed that the patients' reaction to the news would be one of

relief:

And I had given the matter a lot of thought

over two weeks, I discussed this matter a

lot with colleagues, and I . . . decided

that based on the poor working alliance, the

mistrust, the criticism and the later

conversations, the email about again the

patient telling me she wants to be seen

individu ally when I don't see patients

individually and this is already something

we discussed a bout my rules in the first

session, and again, micromanaging me and

telling me how to provide their therapy for

them and again being dissatisfied that I

won't see her i ndividually, I decided you

know what? This is really -- this can't go

on any longer.

* * *

And then came the question what do I do.

Does it make sense to bring them in after

not seeing them -- it would have been now

two and a half weeks and I hadn't se en them

face to face -- just to break up with them,

just to say goodbye, just to say come back

in but just kidding, don't come back in . .

. . Again, I really thought they would be so

relieved.

* * *

So I thought this was going to be . . .

thank God you' re not making us come in

anymore, goodbye, see you later.

Final Hearing Transcript, pp. 471 - 473.

17. Unfortunately for all involved, C .H. and J.H. were not

relieved ÏÏ but rather incensed ÏÏ by Respondent's notice of

termination. O n August 19, 2010, J.H. a dvised Respondent by e -

mail that he and C.H. felt "hurt and confused" by the

termination and that he did not agree with the manner in which

the refund had been calculated (J.H. believed that the "used"

sessions should have been valued at the d iscounted pri ce of $140

per visit , as opposed to Respondent's customary rate of $165).

18. Approximately 15 minu tes later, Respondent e - mailed a

r eply to J.H., wherein she explained that the possibility of

termination had been "brewing" over the past several weeks and

that she ended the relationship by e - mail (instead of calling)

so C.H. and J.H. could both read the message. In addition,

Respondent offered a free office visit to discuss the matter.

19. C.H. and J.H. did not avail themselves of the offer of

a free office visit , and , from what can be gleaned from the

record, had no further communication with Respondent. C.H. and

J.H. did, however, receive a refund from Respondent that valued

the used sessions at $140 ÏÏ as J.H. had requested.

C. Expert Witness Testimony

20. During the final hearing, Petitioner presented the

testimony of Dr. Charles Golden, an expert in the field of

psychology, who opined that Respondent departed from the

standa rd of care in two respects: termination of the therapy by

a means other than a fa ce - to - fac e conversation; and her

purported failure to provide C.H. and J.H. with appropriate pre -

termination counseling ÏÏ i.e., it did not appear, based on his

review of Re spondent's records, that Respondent gave C.H. and

J.H. the names of ot her marital counselors .

21. Dr. Golden's opinion is rejecte d as to both points

because it is apparent, based upon the excerpt of his cross -

examination testimony quoted below , that he has he ld Respondent

to a "best practice" standard that is more stringen t than the

minimum level of performance required by law:

Q. So how is it that Dr. Shaked practiced

beneath the minimum standard?

A. By using an email termination with

clients she was seeing in face - to - face

therapy without properly preparing them and

de aling with the psychological issues that

arise from termination that have to be

anticipated regardless of whether or not you

expect them. And the difference here is we

don't follow -- we follow the rules of best

practice . We do termination face to face,

in a face - to - face client not because we

always anticipate there will be bad things

but because that is the best practice in

terms of doing termination .

Final Hearing Transcript, p. 282 (emphasis added). 2 /

22. Further, Dr. Golden's opinion with respect to the

issue of pre - termination cou nseling suffers from an additional

flaw: it assumes that Respondent never provided C.H. and J.H.

with the names of other marital therapy providers prior to

termination ÏÏ a premise contrary to Respondent's final hearing

t estimony, which the undersigned has credited.

23. For these reasons, Petitioner has failed to adduce

clear and convincing evidence that the manner in which

Respondent handled the termination of C.H. and J.H. fell below

the minimum standard of performan ce . Accordingly, Respondent is

not guilty of violating section 490.009(1)(r), Florida Statutes.

CONCLUSIONS OF LAW

A. Jurisdiction

24 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuan t to section 120.57(1), Florida Statutes .

B. The Burden and Standard of Proof

25 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent's licen se to practice psychology .

Accordingly, Petitioner m ust prove the allegations c ontained in

Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Sec . & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

26 . Clear and c onvincing evidence:

[R]e quires 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 be 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.

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

C. Petitioner' s Authority to Impose Discipline;

The Charges Against Respondent

27 . Sectio n 490.009 , Florida Statutes, authorizes the

Board of Psychology to impose penalties that range from the

issuance of a letter of concern to revocation of a

psychologist's lic ense to practice in Florida if a psychologist

commits one or more acts specified therein.

28 . As noted previously, Petitioner has abandoned Count

One of the two - count Administrative Complaint filed in this

cause . Accordingly, the undersigned need only address Count

Two , wher ein Petitioner alleges that Respondent violated section

490.009(1)(r), which subjects a psychologist to discipline for:

Failing to meet the minimum standards of

performance in professional activities when

measured against generally prevailing peer

performance , including the undertaking of

activities for which the licensee is not

qualified by training or experience.

(emphasis added).

29. S pecifically, Petitioner asserts that Respondent

violated the foregoing statutory provision in that she:

[T]erminated therapy in an email; [] did not

provide pretermination counseling, nor did

she suggest alternative service prov iders as

appropriate; [] informed on client without

informing the other until a later time.

(emphasis added).

30. As discussed in the findings of fact contained herein,

Respondent's guilt has not been demonstrated by clear and

convincing evidence due to Petitioner's failure to articulate,

through the testimony of its expert witness (Dr. Golden), the

minimum standard o f performance against which Respondent's

actions should be measured. Instead, Petitioner has attempted

to hold Respondent to Dr. Golden's formulation of what " best

practice " requires of a psychologist in the termination

context ÏÏ a standard inconsistent w ith, and more exacting than,

the plain language of 490.009(1)(r). Indeed, it is well - settled

that a healthcare provider does not de part from the standard of

care ÏÏ i.e., commit malpractice ÏÏ simply because the "best

practice" was not followed. See Fitzgera ld v. Manning , 679 F.2d

341, 347 (4th Cir. 1982)(holding that a physician does not

violate the standard of care simply because an expert disagrees

as to "what is the best or better approach"); Hudson v. United

States , 636 F. Supp. 2d 827, 831 (W.D. Wis. 20 09)(noting that a

healthcare practitioner is not guilty of malpractice merely by

failing to use the highest degree of care, skill, and judgment);

Bellomy v. United States , 888 F. Supp. 760, 765 (S.D. W. Va.

1995)(holding that a healthcare provider "is not bound to

provide the patient with the highest degree of care possible");

East v. United States , 745 F. Supp. 1142, 1149 (D. Md. 1990)

("The degree of care and skill required . . . in the treatment

of . . . patients is not the highest degree of care and ski ll

known to the profession"); Rogers v. Okrin , 478 F. Supp. 1342,

1385 (D. Mass. 1979 )("A malpractice case is not made out because

an expert disagrees as to what is the best . . . approach"),

rev'd in part on other grounds , 634 F.2d 650 (1st Cir. 1980) ;

Ma tthews v. Aganad , 914 N.E.2d 1233, 1240 (Ill. App. Ct. 2009)

(holding that the burden of proof as to standard of care is not

met where a plaintiff merely presents "expert testimony which

offers an opinion as to correct procedure or which suggests,

without more, that the witness would have conducted himself

differently than the defendant") ; Smethers v. Campion , 108 P.3d

946, 949 (Az. Ct. App. 2005)("While the standard clearly is not

the 'highest degree' of care or skill . . . it is at least a

minimum level o f skill and care") ; Beckham v. St. Paul F ire &

Marine Ins. Co. , 614 So. 2d 760, 764 ( La. Ct. App. 1993)

(observing that malpractice does not occur simply because a

healthcare provider fails to exercise the "highest degree of

care possible"); Bernard v. Blo ck , 575 N.Y.S.2d 506, 509 (N.Y.

App. Div. 1991)("The [malpractice] standard does not require the

very highest degree of care"); Brown v. Koulizakis , 331 S.E.2d

440, 445 (Va. 1985)(stating that a healthcare provider is "not

an insurer of the success of his diagnosis . . . nor is he held

to the highest degree of care known to his profession"); Froman

v. Ayars , 85 P. 14, 16 (Wash. 1906)("He was neither required to

exercise the highest degree of s kill nor the highest degree of

care, but only such as are recogni zed as ordinary and reasonable

by the standards of his profession").

31. As the opinion of Petitioner's expert witness has been

rejected, Respondent cannot be convicted of a violation of

section 490.009(1)(r); t he Administrative Complaint should

ther efore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by th e

Board of Psychology dismissing the Administrative Complaint.

DONE AND ENTERED this 23rd day of May, 2012 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Admin istrative Hearings

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 23rd day of May, 2012 .

ENDNOTES

1 / Although it is disputed whether Respondent pro vided the names

of other marital therapists C.H. and J.H. prior to the

termination of their professional relationship, the undersigned

credits Respondent's testimony over that o f the patients.

2 / These are not isolated references to a "best practice

standard," as demonstrated by the following excerpt of Dr.

Golden's testimony on direct examination :

You have a responsibility to patients,

especially people you are looking at i n

doing face - to - face therapy, to terminate

them face to face, to explain the reasons,

to let them vent on you . . . so that again

it is as best a psychological experience as

possible .

Final Hearing Transcript, p. 273 (emphasis added).

COPIES FURNISHE D :

Adrienne C. Rodgers, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Mark Thomas, Esquire

Dell Graham, P.A.

203 Northeast First Street

Gainesville, Florida 32601

Jennifer A. Tschetter, General Counsel

De partment of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

Allen Hall, Executive Director

Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C - 05

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.