12-001705PL Department Of Health, Board Of Medicine vs. Umesh Madhav Mhatre, M.D. Status: Closed Recommended Order on Tuesday, November 20, 2012.

Summary: Petitioner did not demonstrate that Respondent violated section 458.331(1((t) by allowing patient to appear in presentations with him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1705PL

)

UMESH MADHAV MHATRE, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

On August 20, 2012, a duly - noticed hearing was conducted

in Tallahassee, Florida, before Lisa Shearer Nelson, an

administrative law judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lealand Lane McCharen, Esq uire

Department of Health

Prosecution Services Unit

3052 Bald Cypress Way Bin C - 65

Tallahassee, Florida 32399

For Respondent: Brian A. Newman, Esquire

Pennington, Moore, Wilkinson ,

Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Umesh

Madhav Mhatre, M.D. ( " Dr. Mhatre " or " Respondent " ), has violated

section 458.331(1)(t), Florida Statutes (2007), and i f so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On January 17, 2012, Petitioner, Department of Health ( " the

Department " ) filed an Administrative Complaint against

Respondent, alleging that he had violated section 458.331(1)(t)

based upon his ca re and treatment of patient S.C. On January 24,

2012, Respondent disputed the allegations in the Administrative

Complaint and requested a hearing pursuant to section 120.57(1),

Florida Statutes.

On May 15, 2012, the case was referred to the Division of

A dministrative Hearings for the assignment of an administrative

law judge. The case was assigned to the undersigned and on

M ay 25, 2012, it was scheduled for hearing to be conducted on

August 7 - 8, 2012. At the request of Respondent, the case was

contin ued to August 20 and 22, 2012. The case commenced and

concluded August 20, 2012. Prior to hearing, the parties filed a

Joint Pre - hearing Statement containing several stipulated

findings which, where relevant, have been incorporated into the

findings of f act below.

At hearing, Petitioner presented the testimony of Israel

Jack Abramson, M.D., and Petitioner ' s Exhibits 3, 5, and 6 were

admitted into evidence. Respondent presented the testimony of

Lawrence Reccoppa, M.D., and testifie d on his own behalf.

Respondent ' s Exhibits 1 through 3 were admitted into evidence.

The one - volume Transcript of the proceedings was filed on

September 10, 2012. At the request of the parties, the deadline

for submitting proposed recommended orders was extended twice,

and b oth parties ' submissions were timely filed. All references

to the Florida Statutes are to the 2007 codification unless

otherwise indicated.

FINDING S OF FACT

1. Petitioner is the state agency charged with the licensing

and regulation of the practice of me dicine pursuant to section

20.43 and chapters 456 and 458, Florida Statutes.

2. Respondent is a licensed physician within the State of

Florida, having been issued license number ME 27561 on

September 13, 1976. He has never been the subject of disciplinar y

proceedings prior to this case.

3. Respondent ' s address of record is 165 S.W. Vision Glen,

Lake City, Florida 32025.

4. Respondent is board - certified in adult psychiatry and

child and adolescent psychiatry. Respondent practices in Lake

City, Florida, and is the only full - time psychi atrist practicing

there. He has served on the Board of Directors for the Lake City

Medical Center, as chief of staff twice, as well as serving as the

president of the Columbia County Medical Society. Dr. Mhatre was

an inst ructor at the University of Florida from 1979 to 1980,

followed by service as an adjunct clinical professor for

University of Florida for the next 20 years. He is a consultant

to the State of Florida, Division of Vocational Rehabilitation

within the Depar tment of Education, and has been a court - appointed

psychiatrist for the Third, Fifth, Seventh and Eighth Judicial

Circuits.

5. Dr. Mhatre accepts all types of insurance, including

Medicaid. He continues to treat patients after their insurance

is deplete d.

6. From approximately March of 1999 through approximately

May of 2008, Respondent treated patient S.C.

7. S.C. was a patient experiencing moderate to severe

mental illness. By history, she suffered from a psychotic

disorder, most likely schizophreni a; post - traumatic stress

disorder ( " PTSD " ), with significant personality dysfunction

related to the trauma; obsessive - compulsive disorder ( " OCD " );

traits associated with a personality disorder; and history of

alcohol abuse.

8. S.C. had a history of sexu al abuse by both her mother

and her mother ' s psychiatrist, and physical abuse from her former

husband and her son. Prior to her treatment with Respondent, she

had experienced over 50 hospitalizations in a 10 - year period.

When she presented to Responden t, S.C. was experiencing au ditory

hallucinations and self - injurious behavior, such as cutting

herself.

9. Auditory hallucinations are the misperception that

someone is hearing voices that are not really there. Self -

injurious behavior is the conscious int ent to hurt one ' s self but

without the intent to die.

10 . Beginning i n the spring of 2004, Respondent prescribed

the psychotropic drug Geodon for S.C.

1 1 . Geodon is an anti - psychotic drug that is believed to

block dopamine receptors, and impacts severa l different receptors

in the nervous system.

1 2 . S.C. responded very positively to Geodon, and her

auditory hallucinations and cutting behavior subsided while

treated with the drug.

1 3 . During the time that Dr. Mhatre was treating S.C., he

was also a spe aker for Pfizer Pharmaceuticals, giving lectures on

the benefits of Geodon. He had given those lectures since

approximately 2001. The lectures were presentations to a small

number of other mental health providers in an informal setting.

Dr. Mhatre was p aid for his presentations.

1 4 . Beginning at the end of 2005 through approximately

March 20, 2008, S.C. participated in some of the seminars with

Respondent, providing her experience with the use of Geodon

compared to other psychotropic drugs that had bee n prescribed for

her over the years.

1 5 . S.C . participated in six seminars with Respondent

during this period of time. By contrast, according to

Respondent ' s payment ledger submitted as Respondent ' s Exhibit 3,

Respondent participated in approximately 3 1 presentations . There

were times that S.C. told Dr. Mhatre that she could not attend a

seminar because of a scheduling conflict, and from his view, her

inability to appear did not cause any problems.

1 6 . Dr. Mhatre agreed to speak for Pfizer in part bec ause,

as the only full - time psychiatrist in Lake City, it gave him the

opportunity to interact with other physicians in his field. It

also gave him the opportunity to see the data provided by the

pharmaceutical companies to the Food and Drug Administratio n.

1 7 . S.C. did not testify in this proceeding. According to

Respondent, S.C. was a Medicaid patient and , after taking Geodon

for approximately a year with great success, she had expressed

concern that Medicaid might remove the drug from its formulary

an d stop paying for the Geodon. Respondent suggested that she

speak to a Pfizer representative w h o was visiting his office,

because Pfizer ha d some programs that assisted patients who could

not afford their medications. Dr. Mhatre testified that as a

resul t of S.C. ' s discussions with representatives from Pfizer,

they suggested that she participate in the lectures regarding

Geodon, and she agreed to do so. Dr. Mhatre ' s explanation is

unrebutted. 1/

1 8 . S.C. was reimbursed by Mhatre for travel expenses, but

no other payments were made to her. Dr. Mhatre ' s compensation as

a speaker was not affected by S.C. ' s participation o r lack

thereof. He continued to speak for Pfizer until 2011,

approximately three years after his treatment of S.C. ended. The

presentati ons took time away from his office practice, so the

compensation he received from Pfizer has been replaced by seeing

more patients. There has been little difference in his income as

a result of no longer speaking for the company.

1 9 . Dr. Mhatre discussed with S.C. the potential risks and

benefits of appearing in the presentations. He felt

participation could possibly raise her self - esteem and give her a

feeling of self - control. Telling her story would give S.C. an

opportunity to help other patients. On the other hand, he warned

her that she could encounter some physicians w h o were not

supportive and could be confrontational. Dr. Mhatre stated that,

in the event such an issue arose, he would intercede for her.

However, there is no indication that such a negative encounter

ever occurred.

20 . With respect to those presentations where S.C.

participated, g enerally, Dr. Mhatre would begin a program with a

standard presentation regarding Geodon, and would show some

slides related to the drug and its use with serious mental

illness , such as bipolar disorder or schizophrenia. Then, S.C.

would be given an opportunity to discuss her experiences in terms

of her mental health history, to a degree; her poor response to

other medications; and her robust response to Geodon.

2 1 . S.C. ' s participation in the presentation lasted

approximately ten minutes. Her identity was not revealed and

details regarding her mental health history were very limited.

2 2 . S.C. ' s last two visits with Dr. Mhatre were

February 11, 2008 , and May 12, 2008. At the February 11, 2008,

visit, Dr. Mhatre ' s notes reflect that S.C. ' s prescription for

Prozac ma d e her sleepy, stating in his objective assessment ,

Patient apparently continues to have some

obsessive behavior in spite of 40 mg Prozac

has not changed any rather she has become

increasingly more tired and th u s prefers to

go back to 20 and deal with her obsession by

doing more physical exercise.

2 3 . Dr. Mhatre noted that her treatment response was

" adequate for psychosis, not for OCD. " Her mental status is

described as " shows moderately anxious with some impulsion to

clean but no psychosis not suicidal has no urge to hurt herself. "

The treatment plan indicates that her Geodon will remain at 80 mg

2 tablets daily, and her Prozac would be decreased to 20 mg a day,

with S.C. returning in three months.

2 4 . S.C. participated in her last Geodon presentation on

approximately March 20, 2008.

2 5 . Her last visit with Dr. Mhatre was May 12, 2008. Her

reported subjective assessment was that " I am doing alright. "

Dr. Mhatre ' s objective assessment states:

The patient continues to do very well. She

has not had any relapse of her hallucination.

Neither has she had any urge to cut herself.

Occasionally she has low moods but they are

manageable . She is definitely not suicidal.

2 6 . Dr. Mhatre listed her mental status as " shows no overt

psychoses, hallucination or delusion. Not suicidal or homicidal. "

Dr. Mhatre ' s treatment plan for S.C. was for her to return in

three months, and to maintai n her treatment as is.

2 7 . Dr. Mhatre did not associate with S.C. outside of the

office setting and the Geodon presentations. He did not socialize

with her before or after the presentations.

2 8 . Despite her apparent stability at the May 12, 2008,

visit, on July 7, 2008, S.C. was admitted to Shands at Vista, a

crisis stabilization unit. She was discharged on July 11, 2008.

Her Discharge Summary includes the following:

This is a 44 - year - old divorced white female

admitted voluntarily on a referral from he r

therapist, Dr. Earle y , after reinitiation of

cutting herself superficially on her right

thigh for the last five days. The patient

states that she has had a history of cutting

behavior for eight years in her 30s. She

was started on Geodon at that time a nd since

then her obsession and compulsion of cutting

has improved until the last six months. . .

She also notes that a recent stressor in the

last month has been strong encouragement by

her physician toward doing speeches for the

Geodon pharmaceutical com pany. The patient

states that, however, her symptoms of

obsessions and compulsions have been

worsened in the last six months and she has

been afraid to tell her psychiatrist.

2 9 . At that time, it had been close to two months since S.C.

had seen Dr. Mhat re and three and a half months since she had

appeared at a Geodon seminar. It is unclear how the seminars

became a stressor in the last month, and S.C. was not at hearing

to explain this comment in the discharge summary .

30 . During this hospitalization , Abilify and Lexapro were

introduced into S.C. ' s medication regimen and Geodon and Prozac

were discontinued. She did not see Dr. Mhatre again, and began

treatment with another psychiatrist.

3 1 . Dr. Mhatre ' s patient records for S.C. indicate on

July 11, 2008, that he received a telephone call from a Dr. Earley

in Gainesville who informed him that S.C. had decompensated and

was admitted to Vista. His notes reported the following:

Notation: I received a call from Dr. Earley

in Gainesville, Florida. . . . Dr. Earley

reports that while I was on vacation, S.C .

had decompensated and ended up in Vista.

Dr. Earl e y, however, was concerned that she

felt because of S.C. ' s discussions with me

on Geodon subject to the physician and

nurses group had compromised our d octor/

patient relationship and that S.C. no longer

felt comfortable calling me when she was not

doing well, fearful that I may get upset

with her or that she may let me down.

I discussed with Dr. Earley in that case we

need to transfer her to another phy sician.

Vista Pavilion has already taken the steps

to set her up with another physician for

further management.

Also, discussed in that case the daughter

who is under my care for depression may need

to be seen by someone else as S.C. may find

it difficul t to come to the office with her.

I expressed to Dr. Earley my significant

surprise about S.C. ' s decompensation and

that in the past these talks had been a

tremendous boost to her self - esteem and that

she had done better than ever before. I

urged Dr. Ear ley to explore other

possibilities that may have caused

decompensation.

I also assured Dr. Earley that since she

started having talks with me, I have

repeatedly discussed with her her feelings

about wanting to do these talks and there

was never any pressu re put on S.C. and she

had voluntarily did [sic] these talks. In

fact, I repeatedly assured Dr. Earl e y that

she had felt much better now that she could

educate other people who had helped her

self - esteem tremendousely to the point that

she had even starte d working at domestic

violence shelter and wanted to pursue an

career as a counselor and that it was my

belief all along that this participation in

the talks was very therapeutic for S.C. and

tremendously enhanced her self - esteem.

I have advised Dr. Earle y that I will cancel

S.C. ' s next appointment and should there be

any contact from S.C. with me that I will

notify her.

3 2 . The medical records for Shands Vista indicate that S.C.

began seeing Dr. Earley (who m she had seen in the past) one week

before he r admission to Shands Vista. Dr. Earley , who filed the

complaint with the Department against Dr. Mhatre, did not testify

in this proceeding.

3 3 . The Department contends that Respondent failed to meet

the relevant standard of care by engaging in a bounda ry

violation, which was exploitative and/or result ed in harm to S.C.

In support of this contention, the Department presented the

testimony of Jack Abramson, M.D.

3 4 . Dr. Abramson is a graduate of Laval University School

of Medicine in Quebec City, Canad a, and served his residency at

Harvard Medical School . He has been in group practice in Miami,

Fl orida, since 1990, and is board - certified in general

psychiatry, and the subspecialties of geriatric psychiatry,

addiction psychiatry and forensic psychiatry. Dr. Abramson is a

diplomate of the American Board of Psychiatry and Neurology and

a diplomate of the National Board of Medical Examiners and the

American Board of Quality Assurance. He is also licensed in

Louisiana, Texas, Iowa, Massachusetts, and Arizo na.

3 5 . Dr. Abramson has an " eclectic " practice and sees

patients as a private practitioner in South Florida. He does not

accept M edicaid patients. Approximately one - third of his

practice is devoted to forensic psychiatry.

3 6 . Dr. Abramson reviewed D r. Mhatre ' s medical records for

S.C. Insofar as the actual conduct of Dr. Mhatre in his office,

and his notes, medical prescriptions, diagnoses and evaluations

for S.C., he " found no issues. " However, Dr. Abramson believed

that Dr. Mhatre committed a bou ndary violation when he recruited

S.C. to present her story in commercial presentations on behalf

of a drug company. According to Dr. Abramson, the standard of

care is well - accepted in the psychiatric community. When one is

engaged with psychiatric patie nts in a doctor - patient

relationship, it is inherently recognized that the relationship

is one of unequals, and that the doctor holds a position of

superiority and power over the patient, and therefore has a

responsibility to strictly observe boundaries wi th respect to the

relationship.

3 7 . When asked what constituted the actual violation or

departure from the standard of care, Dr. Abramson opined that

" the violation was that he got his patient to agree to present

her story to commercial presentations on behalf of the drug

company. " However, there was no evidence presented that

Dr. Mhatre persuaded S.C. to participate in the presentations.

The only competent evidence presented indicates that a Pfizer

representative made the suggestion to S.C. Dr. Abrams on also

testified that if no recruitment by Dr. Mhatre took place, and

S.C. indicated that participation in the programs was something

she wanted to do, then it was Dr. Mhatre ' s responsibility to

discuss with her the possible straying outside the normal

th erapeutic limits and ramifications for treatment.

3 8 . Dr. Abramson acknowledged that there is no statute or

rule specifically prohibiting the kind of conduct at issue in

this case, as there is with sexual misconduct. He also

acknowledged that allowing t he participation of a patient in a

presentation such as the one described here would not necessarily

be a departure from the standard of care with respect to every

patient , and in some cases, a patient could derive a benefit from

participation . In his vie w, what makes it an issue with respect

to S.C. is the extent of her illness. Because of the complexity

of S.C. ' s history, Dr. Abramson opined that she was an extremely

fragile patient with whom boundaries must be extremely firm and

concrete.

3 9 . Dr. Abr amson also acknowledged that S.C. could

experience a return of symptoms at any time whether she

participated in the Geodon programs or not. He did not interview

S.C. or evaluate her.

40 . Respondent presented the expert testimony of Lawrence

Reccoppa , M. D. Dr. Reccoppa completed his undergraduate degree

at Cornell University and his medical degree at the University of

Florida. His r esidency was also completed at the University of

Florida. He is board - certified in psychiatry and licensed to

practice med icine in Florida since 1987. For the last 20 years,

Dr. Reccoppa has served as a courtesy clinical professor for the

University of Florida, supervising approximately two residents

per year in his private practice, and works with the forensic

fellows at th e University who work in the prison system. 4 1 .

Dr. Reccoppa ' s private practice generally consists of an adult

outpatient private practice, with patients of both sexes from age

16 to late in life. His patients include people with mood and/or

anxiety di sorders, and thought disorders or psychoses and

personality disorders. He treats patients with auditory

hallucinations and self - injurious behaviors.

4 2 . Dr. Reccoppa reviewed S.C. ' s patient records from

Dr. Mhatre and from Shands Vista. He saw nothing in S.C. ' s

medical records that indicated she did not have decision - making

or informed consent capacity, and does not think that the Geodon

seminars were a factor in her decompensation, stating that there

can be multiple factors leading to a relapse. Dr. Reccoppa also

attended one of the Geodon presentations at which S.C. appeared.

4 3 . The presentation that Dr. Reccoppa attended occurred in

Gainesville sometime in 2007. It was attended by approximately

10 mental health professionals, including Dr. Rec coppa and

several other psychiatrists, including two faculty members at the

University of Florida (Dr. Carlos Muniz and Dr. Ross McElroy); a

psychologist; and a mental health therapist.

4 4 . Dr. Reccoppa ' s description of the program varied very

little fro m Dr. Mhatre ' s, with the exception of the order in

which the presentation was structured. The differences were not

material in terms of S.C. ' s participation. He recalled that S.C.

discussed problems she had experienced with weight gain and

sedation with other medications, and her experience with Geodon.

It did not appear that she was uncomfortable or forced to relive

any trauma from her past during the program, and she gave no

indication that she was anxious about participating in the

program.

4 5 . To the contrary, she appeared to be comfortable in

front of the approximate ten attendees. According to

Dr. Reccoppa , the attendees were very accepting of her

participation and told her that they were grateful that she

attended and shared her experience. H e recalled S.C. stating

that she felt comfortable doing it and that it was a positive

experience for her to be able to express some of her problems

with medications and the positive experience she had had with

Geodon, with the hope that she could help othe r providers care

for their patients.

4 6 . Dr. Reccoppa opined that it is possible for a patient

like S.C. to derive a therapeutic benefit from appearing at a

program like the Geodon program, as it could provide a positive

effect on the pat i ent's self - este em to be able t o speak to an

empathetic group who could provide positive feedback. Such a

patient could also benefit from the idea that he or she was

helping others.

4 7 . Dr. Reccoppa compared the presentation to grand rounds,

and has attended other, s imilar programs, both at the University

of Florida and at the Department of Corrections. He described

grand rounds at the university as a situation where several

faculty members attend a meeting in which a presentation is given

about a disease state, a me dication, or where a patient is

interviewed to discuss his or her history and course of

treatment. While Dr. Abramson testified that there are ethics

panels through which patients would be screened for participation

in a grand rounds setting, Dr. Reccoppa was not aware of such a

requirement. In fact, Dr. Reccoppa stated that the complexity of

S.C. ' s situation made her appropriate for a grand round setting,

because a simple patient does not present the same educational

opportunity. Dr. Reccoppa ' s testimon y is credited.

4 8 . Dr. Reccoppa did not believe that allowing S.C. to

participate in the Geodon presentations was a violation of the

appropriate standard of care, and did not believe that Dr. Mhatre

had committed a boundary violation. He knew of no peer - reviewed

or authoritative literature that would indicate that it would be

departure from the standard of care for a patient to participate

with his or her psychiatrist in a pharmaceutical company -

sponsored program.

4 9 . Dr. Reccoppa opined that a boundar y violation that

would represent a practice below the applicable standard of care

would occur when a psychiatrist becomes involved with a patient

in a manner that does not encompass the doctor - patient

relationship, and involves co - mingling outside of the

p rofessional setting, such as dating, socializing or investing

with a patient. Dr. Mhatre did not engage in this type of

behavior with S.C.

50 . After careful review of the expert testimony presented,

Dr. Reccoppa ' s opinion is more persuasive as applied t o the

evidence in this case. Dr. Abramson, while a fine psychiatrist,

is not a reasonably prudent similar physician practicing under

similar circumstances . His practice is in a metropolitan setting

and he does not see Medicaid patients. Dr. Mhatre is th e only

full - time psychiatrist in a much more rural area and sees all

types of patients, regardless of insurance. Dr. Reccoppa had

actually observed S.C. and saw her behavior during one of the

presentations at issue. Given the totality of the evidence, it

is found that there was no violation of the relevant standard of

care with respect to Dr. Mhatre ' s care and treatment of patient

S.C.

CONCLUSIONS OF LAW

5 1 . The Division of Administrative Hearings has

jurisdiction over the pa rties and the subject matter in this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2012).

5 2 . This is a proceeding whereby the Department seeks to

impose discipline against Respondent ' s license to practice

medicine. Accordingly , the Department has the burden to prove

the allegations in the Administrative Complaint by clear and

convincing evidence. Dep ' t of Banking & Fin. v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 595

So. 2d 292 (Fla. 1987). As stated by the Supreme Court of

Florida,

Clear 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 a s

to the facts at 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, 59 0 (Fla. 2005)(quoting Slomowitz

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

burden of proof may be met where the evidence is in conflict;

however, " it seems to preclude evidence that is ambiguous. "

Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

988 (Fla. 1 st DCA 1991).

5 3 . Moreover, in disciplinary proceedings, the statutes

and rules for which a violation is alleged must be strictly

construed in favor of Respondent. Elamariah v. Dep ' t of Prof ' l

Reg. . 574 So. 2d 164 (Fla. 1 st DCA 1990); Taylor v. Dep ' t of

Prof ' l Reg. , 534 So. 2d 782, 784 (Fla. 1 st DCA 1988).

5 4 . The Administrative Complaint charges Respondent with

violating section 458.331(1)(t), Florida Statutes (2007), which

provides:

(t) Notwithstanding s. 456.072 (2) but as

specified in s. 456.50 (2):

1. Committing medical malpractice as defined

in s. 456.50. The board shall give great

weight to the provisions of s. 766.102 when

enforcing this paragraph. Medical

malpractice shall not be construed to require

more tha n one instance, event, or act.

2. Committing gross medical malpractice.

3. Committing repeated medical malpractice

as defined in s. 456.50. A person found by

the board to have committed repeated medical

malpractice based on s. 456.50 may not be

l icensed or continue to be licensed by this

state to provide health care services as a

medical doctor in this state.

Nothing in this paragraph shall be construed

to require that a physician be incompetent

to practice medicine in order to be

disciplined pu rsuant to this paragraph. A

recommended order by an administrative law

judge or a final order of the board finding

a violation under this paragraph shall

specify whether the licensee was found to

have committed " gross medical malpractice, "

" repeated medic al malpractice, " or " medical

malpractice, " or any combination thereof,

and any publication by the board must so

specify.

5 5 . Section 456.50, Florida Statutes (2007), states:

(e) " Level of care, skill, and treatment

recognized in general law related to health

care licensure " means the standard of care

specified in s. 766.102.

(f) " Medical doctor " means a physician

licensed pursuant to chapter 458 or chapter

459.

(g) " Medical malpractice " means the failure

to practice medicine in accordance with th e

level of care, skill, and treatment

recognized in general law related to health

care licensure. Only for the purpose of

finding repeated medical malpractice pursuant

to this section, any similar wrongful act,

neglect, or default committed in another

sta te or country which, if committed in this

state, would have been considered medical

malpractice as defined in this paragraph,

shall be considered medical malpractice if

the standard of care and burden of proof

applied in the other state or country equaled

or exceeded that used in this state.

5 6 . Finally, section 766.102, Florida Statutes (2007),

defines the prevailing professional standard of care as " that

level of care, skill, and treatment which, in light of all

relevant surrounding circumstances, is recognized as acceptable

and appropriate by reasonably prudent similar health care

providers. "

5 7 . The Administrative Complaint alleges that Respondent

violated the standard of care as follows:

a. Respondent violated his doctor - patient

relationship w ith S.C. by having her relive

her early trauma through giving speeches or

testimonials in support of Geodon.

b. Respondent violated his doctor - patient

relationship with S.C. by having her reveal

confidential and privileged doctor - patient

communications to the public.

c. Respondent engaged in a dual relation -

ship with a patient to the detriment of the

therapeutic relationship and the patient.

d. Respondent engaged in a boundary

violation, which was exploitative and/or

resulted in harm to S.C.

e. Respo ndent inappropriately took

advantage of the dynamics that were present

naturally in the therapy situation:

transference, intimacy, dependency,

idealization, rapport, empathy and the

closeness S.C. felt with Respondent as a

confidant.

f. Rather than serv ing as an essential

element of the therapeutic alliance for

therapeutic goals, these natural elements of

therapy were put to the service of

Respondent ' s gratification rather than the

patient ' s welfare.

5 8 . The Department did not establish by clear and

c onvincing evidence that S.C. " re - lived her early trauma "

through giving speeches or testimonials in support of Geodon.

S.C. did not testify, and Drs. Mhatre and Reccoppa, who

participated in or witnessed the presentations, testified that

she seemed comfor table and empowered by the experience, which is

wholly inconsistent with someone who is re - living past trauma.

5 9 . The Department did not establish by clear and

convincing evidence that Dr. Mhatre violated the appropriate

standard of care by having S.C. reveal confidential and

privileged doctor - patient communications to the public. First,

there was no evidence that communications between doctor and

patient were revealed at all. Second, the evidence is clear

that S.C. ' s identity was not revealed, and any information

related to her history was limited. Most importantly, no

evidence was presented to indicate that S.C. has ever been

determined to be incompetent. Therefore, it is within S.C. ' s

rights to determine how much or how little of her history she

sh ares with anyone. There was no competent evidence presented

that Dr. Mhatre pressured her to reveal anything.

60 . The Department did not establish by clear and

convincing evidence that Respondent engaged in a dual

relationship. Neither Dr. Abramson nor Dr. Reccoppa described

the appearance at these six presentations as evidence of a dual

relationship, and a dual relationship was never defined.

Because the Administrative Complaint separately lists dual

relationships and boundary violations, it must be a ssumed,

absent evidence to the contrary, that the two terms can mean

different things, even if they have the potential to overlap.

No such evidence was presented.

61. The Department did not prove by clear and convincing

evidence that Dr. Mhatre " took ad vantage of the dynamics and

potential dynamics that are present in the therapy situation:

transference, intimacy, dependency, idealization, rapport,

empathy and the closeness S.C. felt with Respondent as a

confidant. " Most of this terminology was not even mentioned by

witnesses in the hearing. Without some testimony as to how

these factors apply in this case, they cannot be assumed.

62. Finally, the Department did not prove by clear and

convincing evidence that " natural elements of therapy were put

to t he service of Respondent ' s gratification rather than the

patient ' s welfare. " The evidence indicates that Respondent was

a speaker for Pfizer well before S.C. ' s participation, and well

after. Nothing with respect to his remuneration from the

company for s peaking changed because of S.C. No testimony was

elicited that indicated any other type of gratification

experience d by Dr. Mhatre as a result of S.C. ' s participation.

63. As with many treatment approaches for mental illnesses ,

there are risks and there are benefits to allowing S.C.'s

participation in the drug presentation . Dr. Abramson seemed to

think that if there was a risk to a complex patient, any potential

benefit had to be discounted. The evidence indicated, however,

that at least for a time, S. C. did in fact benefit from the

presentations for Pfizer. As a competent adult, she had the

ability to decide whether she wanted to appear, despite her

illness. She made the decision to do so, and later changed her

mind. The reluctance to share a change of heart is not limited to

those people suffering from a major mental illness. Allowing S.C.

to make up her own mind does not equate to a departure from the

applicable standard of care.

64. The undersigned notes that Dr. Abramson testified that

there w as no statute or rule, as compared to sexual misconduct,

that identified the type of conduct alleged in this case as a

boundary violation, and that Dr. Reccoppa testified that he knew

of no peer review or authoritative literature that identified

this condu ct as a departure from the standard of care. In that

respect, this case is much like that presented in Breesmen v.

Department of Professional Regulation 567 So. 2d 469 (Fla. 1st

DCA 1990). In Breesmen , the Department of Professional

Regulation charged a physician with a violation of section

458.331(1)(t) and (m), based upon his treatment (or lack

thereof) of a seriously ill cardiac patient. The physician

testified after her death that he had attempted to persuade the

patient to accept treatment and she r efused. In reversing the

Board ' s conclusion that Dr. Breesmen violated section

458.331(1)(m), with respect to recordkeeping, the First District

stated:

We also note that at no time during these

proceedings has the Board made reference to

any statute or ru le that fixes the standard

of conduct to be followed by a physician

who se patient refuses treatment and requests

that his or her refusal not be documented in

the hospital records. Nor has the Board set

forth any statute or rule that requires a

physician t o document in the patient ' s

medical chart the physician ' s reason for not

performing particular tests or procedures.

Basic due process requires that a

professional or business license not be

suspended or revoked without adequate notice

to the licensee of t he standard of conduct to

which he or she must adhere. The opinions of

the experts offered by the parties cannot

make certain, after the fact, those standards

of conduct that are not clearly set forth in

the statute or rule.

576 So. 2d at 471 - 2.

65. The same can be said here. The only boundary violation

clearly delineated, in both statute and rule, is sexual

misconduct. § § 456.063 and 458.329, Fla. Stat.; Fla. Admin. C ode

R. 64B8 - 9.008. Dr. Mhatre testified credibly that it never

occurred to him that allowing S.C. to appear at the Pfizer

presentations was improper. With no statute, rule, or

authoritative literature advising against it, his position is

reasonable.

6 6 . In short, there is no clear and convincing evidence

that Respondent violated s ection 458.331(1)(t), with respect to

his care and treatment of S.C.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Final Order dismissing the Administrative Compl aint against

Respondent.

DONE AND ENTERED this 20th day of November , 2012 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative 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 20th day of November , 2012 .

ENDNOTE

1/ There is some indication in th e patient records from Shands

that Dr. Mhatre " strongly encouraged " S.C. to appear at these

presentations. There is also indication in those records that

she was paid to do so, when in fact she was only reimbursed for

mileage if the presentation was out o f town. While the medical

records are admissible as an exception to the hearsay rule under

section 90.803(4) & (6), it does not mean hearsay within hearsay

thus becomes admissible. Hammond v. Mulligan , 667 So. 2d 854,

855 (Fla. 5th DCA 1996); Loper v. Al lstate Ins. Co. , 616 So. 2d

1055, 1058 - 59 (Fla. 1st DCA 1993).

COPIES FURNISHED:

Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399 - 3265

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell and Dunbar, P.A.

215 South Monroe Street, 2nd Floor

Post Office Box 10095

Tallahassee, Florida 32302

Joy A. Tootle, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Ts chetter, Gene ral Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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 Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.