13-004756PL Department Of Health, Board Of Osteopathic Medicine vs. David Simon, D.O. Status: Closed Recommended Order on Wednesday, July 30, 2014.

Summary: Respondent, who had a year-long consensual affair with a patient, is guilty of sexual misconduct in the practice of osteopathic medicine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

OSTEOPATHIC MEDICINE,

Petitioner,

vs. Case No. 13 - 4756PL

DAVID SIMON, D.O.,

Respondent.

_______________________________/

RECOMMENDED ORDER

T his case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

May 20, 2014, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Yolonda Y. Green, Esquire

Mary S. Mill er, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: David W. Spicer, Esquire

Jonathan W. Chambers, Esquire

Law Offices of Spicer and Miller, P.L.

11000 Prosper ity Farms Road, Suite 104

Palm Beach Gardens, Florida 33410 - 3477

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, an

osteopathic physician who had a year - long consensual affair with

one of his patients, committed sexual miscond uct in the practice

of osteopathic medicine; and if so, whether Petitioner should

impose discipline on Respondent's license within the applicable

penalty guidelines or take some other action.

PRELIMINARY STATEMENT

On July 11, 2013 , Petitioner Departmen t of Health issued an

Administrative Complaint against Respondent David Simon, D. O.

Petitioner alleged that Respondent had engaged in sexual

misconduct with a patient. Dr. Simon timely requested a formal

hearing, and on December 11, 2013 , Petitioner file d the

pleadings with the Division of Administrative Hearings, where an

Administrative Law Judge was assigned to preside in the matter.

After one continuance, which was unopposed, th e final

hearing took place on May 20, 2014 , as scheduled, with both

partie s present. Petitioner called Dr. Simon as its only

witness. Joint Exhibit 1 was received, as were Petitioner's

Exhibit s 6 and 7. 1 / Dr. Simon presented two witnesses : Dr. Mary

Scanlon and Helen Virginia Bush . Respondent's Exhibit s 1 , 2,

and 3 were admi tted as well .

The final hearing transcript was filed on Ju ne 9 , 201 4 .

Proposed r ecommended o rders were due, and were filed, on

July 15, 2014 . Each party's Proposed Recommended Order has been

considered.

Unless otherwise indicated, citations to the Flo rida

Statutes and Florida Administrative Code refer to the provisions

in effect at the time Respondent allegedly engaged in the

conduct upon which Petitioner's charges against him are based .

FINDINGS OF FACT

1. Respondent David Simon , D.O. ("Simon") , is a family

practitioner who was, at all times relevant to this case,

licensed as an osteopathic physician in the s tate of Florida.

His office was located in Palm Beach County, where he practiced

medicine from 1985 through the events at issue and beyond, unt il

at least the date of the final hearing.

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

regulatory jurisdiction over licensed osteopathic physicians

such as Simon. In particular, the Department is authorized to

file and prosecute an admin istrative complaint against a

physician, as it has done in this instance, when a panel of the

Board of Osteopathic Medicine has found that probable cause

exists to suspect that the physician has committed a

disciplinable offense.

3. I n May 2005, a 30 - som ething year - old woman named C.K.

became a regular patient of Simon's. As C.K.'s primary care

physician from 2005 until the end of 2011, Simon treated C.K.

for a variety of physical and psychological disorders. The

nature and quality of Simon's medical ca re of C.K. are not in

dispute, the Department having neither alleged nor proved that

Simon's treatment of C.K. ever fell below the applicable

standard of care, or that Simon's medical records failed to

justify any course of treatment he undertook for her b enefit.

4. In or around November 2010, while their otherwise

unremarkable physician - patient relationship remained intact,

Simon and C.K. entered into a mutually consensual sexual

relationship. This affair had its genesis in a discussion

between Simon an d C.K. that occurred on October 12, 2010, during

an office visit. While being seen that day, C.K. expressed

concern about having been exposed recently to sexually

transmitted diseases as a result of experiences which she not

only related in some detail to Simon, but also corroborated with

photographic evidence stored in her cell phone. In view of

these disclosures, Simon lost his professional detachment and

entered into a flirtatious conversation of a personal, even

intimate, nature with C.K. that was out side the scope of his

examination or treatment of C.K. as a patient. C.K. was a

willing participant in the non - clinical sexual banter which

ensued.

5. Some days or weeks later (the precise date is

unavailable), C.K. stopped by Simon's office on a Frid ay

afternoon after business hours, when Simon was there alone. The

two resumed their previous, personal conversation, and C.K.

proposed that they have sexual relations with one another, a

suggestion to which Simon responded positively.

6 . Within weeks afterwards, Simon called C.K., and they

made arrangements to meet privately after hours at his office,

which they later did, as mentioned above, sometime in

November 2010. Beginning with that visit, and continuing for

about one year, Simon and C.K. met o nce or twice a month in

Simon's office, alone , to engage in sexual activity. 2 / Simon

used his cell phone to call or text C.K. to schedule these

trysts.

7 . C.K. consented to the sexual activity with Simon. She

was, however, incapable of giving free, ful l, and informed

consent to such activity with her physician. 3 / Because C.K. was ,

at all relevant times, a competent adult, the undersigned infers

that her incapacity to freely give fully informed consent

stemmed from Simon's powerful influence over her as a patient of

his.

8. C.K. and Simon did not have sexual relations during, or

as part of, any visit that C.K. made to Simon's office for the

purpose of seeking medical advice or care. In other words,

doctor's appointments did not provide occasions, or s erve as

cover, for intimate rendezvous. There is no persuasive evidence

that Simon ever tried to convince C.K. that their sexual

encounters would be therapeutic or were somehow part of a course

of purported medical treatment or examination. Rather, Simon

testified credibly (and it is found) that he and C.K. kept their

personal and professional relati onships separate and distinct. 4 /

9 . The Department has made much of the type of sexual acts

that Simon and C.K. engaged in. Simon described their behavior,

somewhat euphemistically, as "sexually adventurous." The

Department, in contrast, has implied that Simon is a paraphilia c

or pervert, a contention which the undersigned rejects as not

just unsupported, but disproved by the evidence. Although at

least so me of the sexual conduct in question might fairly be

dubbed unconventional, more important is that every interaction

between these adults took place in private, within the context

of mutual consent. T here is, moreover, no clear and convincing

proof in thi s record of sexual violence or aggression, nor any

evidence of actual injury, damage, or harm. For reasons that

will be discussed, the undersigned has concluded that the

details of Simon and C.K.'s sexual encounters are irrelevant to

the charges at hand; thus, no additional findings about the

specific sexual activities are necessary.

10. Simon's liaison with C.K. lasted until late

December 2011, at which time C.K. abruptly terminated the

relationship. The evidence fails to establish C.K.'s reasons

for d oing so. Thus, the circumstances surrounding the end of

the affair, of which scant evidence was presented in any event,

are irrelevant.

11. In the wake of the break up, Simon's affair with C.K.

became a matter of public knowledge, gaining him the sort o f

notoriety few physicians would covet. Facing personal disaster

and professional ruin, Simon sought counseling from

Helen Virgin i a Bush, a specialist in sex therapy who is licensed

both as a clinical social worker and as a marriage and family

therapist. Ms. Bush counseled Simon on subjects such as

professional boundaries and erotic transference. At her urging,

Simon attended and suc c essfully completed the PBI Professional

Bound aries Course, a nationally reco g n ized program for doctors

and others at risk of developing inappropriate personal

relationships with patients or clients. Ms. Bush testified

credibly that in her opinion, which the undersigned accepts,

Simon is unlikely to enter into another sexual relationship with

a patient or attempt to do so.

12. Simon shares office space and staff with Mary Scanlon,

D.O., a physician who, like Simon, specializes in family

medicine. Although she has an independent practice, Dr. Scanlon

works in close proximity to Simon, whom she met in 2000 during

her residency when Simon was the attending physician.

Dr. Scanlon believes Simon to be an excellent physician from

whom she has learned much about practicing medicine, and her

credible testimony that Simon's patients hold him in high regard

and have largely s tood by him throughout this scandal is

accepted.

13. Dr. Scanlon was an effective character witness for

Simon who favorably impressed the undersigned with her earnest

and forthright demeanor. That she has elected to continue

practicing in the office s he shares with Simon despite the

public disclosure of Simon's disgraceful dalliance with C.K.

(which she in no way condoned or tried to excuse), even though

she is not contractually bound to stay there, manifests genuine

support of and respect for Simon, a nd tells the undersi gned ÏÏ

more persuasively than any testimony ÏÏ that his career is worth

saving.

14. This is the first time that any disciplinary action

has been taken against Simon's medical license.

Ultimate Factual Determinations

1 5 . The evidence es tablishes, clearly and convincingly,

that Simon exercised influence within the patient - physician

relationship, albeit probably unwittingly, for purposes of

engaging C.K. in sexual activity. This ultimate finding is

based in part on an inference which foll ows from the presumed

fact of C.K.'s incapacity to consent to sexual activity with

Simon, but also on other circumstances, the most salient of

which are that the initial steps toward the affair were taken

during a medical examination, and that all of the s exual

activity at issue occurred in the doctor's office.

16 . It is therefore determined, as a matter of ultimate

fact, that Simon is guilty of engaging in sexual misconduct with

a patient, as more fully defined in section 459.0141, Florida

Statutes, wh ich is a disciplinable offense punishable under

section 459.015(1)(l) .

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida St atutes (2013).

1 8 . The Department has brought two charges against Simon,

each founded on the same conduct, namely Simon's affair with

C.K. , which the Department alleges Simon carried out through the

use of the patient - physician relationship, which gave hi m

exploitable influence over C.K.

19 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to i mpose discipline, the

Department must prove the charges against Simon by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med. ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995).

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

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

developed a "workable d efinition 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 b e credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in 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. S ee In re

Davey , 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

preclude 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).

2 1 . Taking the instant charges in reverse order, the

Department accused Simon, in Count Two of the Administrative

Complaint, with sexual misconduct under section 459.015(1)(l),

Florida Statutes, which provides in pertinent part as follows:

(1) The following acts shall constitute

grounds for . . . disciplinary action[ :]

* * *

(l) Exercising influence within a patient -

physician relationship for purposes of

engaging a patient in sexual activity. A

patient shall be presumed to be incapable of

giving free, full, and informed consent to

sexual activity with his or her physician.

22. The kind of inappropriate sexual activity between

physicians and patients that subjects a physician to discipline

under section 459.015(1)(l) is also the focus of

section 459.0141, which defines "[s]exual misconduct in the

practice of osteopathic medicine" as meaning a

violation of the osteopathic physician -

patient relationship through which the

osteopathic physician uses the relationship

to induce or attempt to induce the patient

to engage, or to engage or attempt to engage

the pat ient, in sexual activity outside the

scope of the practice or the scope of

generally accepted examination or treatment

of the patient. Sexual misconduct in the

practice of osteopathic medicine is

prohibited.

( emphasis added ) .

23 . In Count One of the Ad ministrative Complaint, the

Department charged Simon, under section 459.015(1)(pp), with

having violated section 459.0141 by committing sexual misconduct

in the practice of osteopathic medicine. Section 459.015(1)(pp)

defines a catchall offense that subje cts licensees to discipline

for violating any provision of chapter 459 "or chapter 456, or

any rules adopted pursuant thereto." The Department considers

the last sentence in section 459.0141 ("[s]exual misconduct . . .

is prohibited") to be an independent ly violable provision of

chapter 459 and consequently takes the position that sexual

activity with a patient is punishable not only under

section 459.015(1)(l), but also as a separate catchall offense

under paragraph (pp).

24. As a threshold matter, the undersigned finds it

necessary to consider whether section 459.015(1)(l) defines a

disciplinable offense distinct from that which the Department

believes is described in sections 459.015(1)(pp)/459.0141. W hen

determining the meaning of disciplinary statut es, such as these,

the law demands that the pertinent language "be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camej o v. Dep't of

Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly constr ued

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee."); see

also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929 , 931 (Fla. 1st DCA 2011)(statu t es imposing a penalty must

never be extended by construction).

25. It will be observed initially that sections

459.015(1)(l) and 459.0141 are in pari materia ÏÏ that is, they

address the same subject, i.e., sexual misconduct by an

osteopathic physician . As the Florida Supreme Court has

explained:

[It is a] well - settled rule that, where two

statutes operate on the same subject without

positive inconsistency or repugnan cy, courts

must construe them so as to preserve the

force of both without destroying their

evident intent, if possible. It is an

accepted maxim of statutory construction that

a law should be construed together with and

in harmony with any other statute re lating to

the same subject matter or having the same

purpose, even though the statute s were not

enacted at the same time.

Mann v. Goodyear Tire & Rubber Co. , 300 So. 2d 666, 668 (Fla.

1974)(footnotes omitted); see also, e.g. , Mehl v. State , 632 So.

2d 593 , 595 (Fla. 1993)(separate statutory provisions that are in

pari materia should be construed to express a unified legislative

purpose); Lincoln v. Fla. Parole Comm'n , 643 So. 2d 668, 671

(Fla. 1st DCA 1994)(statutes on same subject and having same

general purpose should be construed in pari materia).

26. No inconsistency exists between sections 459.015(1)(l)

and 459.0141. To the contrary, the two statutes are

complementary. Section 459.015(1)(l) makes it a disciplinable

offense to "[e]xercise influence w ithin a patient - physician

relationship" for the purpose of seducing a patient.

Section 459.0141 supplies a definition of "sexual misconduct in

the practice of osteopathic medicine" whose essence is "us[ing]

the [patient - physician] relationship" to seduce a patient. There

is no semantic difference between "exercising influence within a

patient - physician relationship , " on one hand, and "using the

patient - physician relationship , " on the other, when each of

the phrases is plainly intended, as here, to identi fy a

wrongful means of seduction. Behind both formulations is the

notion that the physician holds the upper hand in the patient -

physician relationship, and therefore, if so inclined, can

exploit this relatively powerful position to overreach the

patient i n a sexual transaction. Both of the statutes at issue ÏÏ

sections 459.015(1)(l) and 459.0141 ÏÏ express the same policy of

discouraging physicians from using their position of authority as

leverage to persuade patients to indulge in sexual relations.

27. Giv en the identity of meaning, the undersigned cannot

imagine a scenario (and concludes there is none) in which a

physician who exercised influence within a patient - physician

relationship to engage a patient in sexual activity could not

also be said to have u sed the relationship to engage the patient

in sexual activity, or vice versa, where the use of a patient -

physician relationship for such a purpose would not

simultaneously entail the exercise of undue influence within the

relationship. The Board of Osteop athic Medicine evidently has

come to the same conclusion, for in its penalty guidelines the

board describes the offense defined in section 459.015(1)(l) as

"[s]exual misconduct within the patient physician relationship."

See Fla. Admin. Code R. 64B15 - 19.0 02(13). This summary clearly

conflates ÏÏ and thus equates ÏÏ "[s]exual misconduct in the practice

of osteopathic medicine" (§ 459.0141) with "[e]xercising

influence within a patient - physician relationship for purposes of

engaging a patient in sexual activity " (§ 459.015(1)(l)).

28. When the two statutes are read together, the statement

in section 459.0141 that sexual misconduct "is prohibited"

stands as a declaration of the fact that such misconduct is

prohibited ÏÏ under section 459.015(1)(l), which speci fically

subjects a physician to disciplinary action for taking advantage

of a patient by enticing him or her to engage in sexual

activity. It is concluded that because, according to the plain

and unambiguous language of the statutes in question, 5 / sexual

misconduct in the practice of osteopathic medicine as defined in

section 459.0141 is the specific offense punishable under

section 459.015(1)(l), the same misconduct cannot also be

punishable under paragraph (pp) as a general catchall offense. 6 /

Therefore , although the Administrative Complaint contains two

counts, there is but one disciplinable offense in back of the

charges.

29. The next legal issue to resolve concerns the operation

of the presumption of incapacity set forth in section

459.015(1)(l), wh ich provides that a "patient shall be presumed

to be incapable of giving free, full, and informed consent to

sexual activity with his or her physician." Under the plain

language of the statute, this presumption is irrebuttable, or

conclusive. See Hall v. Recchi Am . , 671 So. 2d 197, 200 (Fla.

1st DCA 1996)("A presumption is conclusive if a party is

not given a reasonable opportunity to disprove either the

predicate fact or the ultimate fact presumed.") . Pursuant to

section 45 9 .015(1)(l), if sexual activit y between physician and

patient (the basic or predicate fact) is shown to have occurred,

then the fact finder must determine (as a presumed or ultimate

fact) that the patient was incapable of giving full, free, and

informed consent to the activity, at leas t where such a

determination is relevant to the disposition of the case.

30. The presumption of incapacity has two implications

that are fairly readily apparent. One is confirmation that lack

of consent is not a constituent element of the offense. The

Department, in other words, need not prove that an instance of

sexual activity between a physician and his patient was

nonconsensual in order to establish a disciplinable act. The

other is that consent is not an affirmative defense: a

physician can be fo und guilty of sexual misconduct involving a

patient even if the evidence shows that, as a matter of

historical fact, the patient consented to the sexual activity. 7 /

31. There is a third implication that is less apparent.

The presumption of incapacity pr opagates the idea that all

patients are vulnerable, regardless of the particular

circumstances surrounding each individual case, because no

patient can ever be found to have been capable of freely giving

fully informed consent. The only thing that all pat ients who

have had sex with their doctors have in common, however, is that

each of them has had sex with his or her doctor. This means

that the cause of a patient's presumed incapacity must be

related, not to any characteristics unique to the given patien t

(for all patients are equally incapable in the eyes of the law),

but to the fact that the patient's sexual partner was a doctor.

Because the sole common denominator is the patient - physician

relationship, that relationship must somehow be the reason for

the patient's incapacity to consent.

32. Just how the patient - physician relationship causes

such incapacity is not stated in the statute. The only

explanation that makes logical sense, however, depends upon the

assumption that any consent which the pat ient may have given as

a matter of historical fact was the product of the physician's

irresistible, overpowering influence, rather than the patient's

free exercise of fully independent judgment. Necessarily

embedded within such assumption is the presuppos ition that

behind every instance of sexual activity between a patient and

physician is a physician who took advantage of his or her

superior position vis - à - vis the patient when obtaining the

patient's consent to sex.

33. To be sure, section 459.015(1)( l) does not require the

fact finder to presume, from the predicate fact of sexual

activity with a patient, that the physician exercised influence

within the patient - physician relationship to bring about the

sexual activity. Only the patient's incapacity t o consent must

be presumed from that basic fact. The patient's presumed

incapacity to consent, however, strongly implies physician

overreaching as the only reasonable explanation for an otherwise

competent adult's inability to give free, full, and informe d

consent to sexual activity. The undersigned concludes that the

ultimate fact of incapacity to consent which follows as a matter

of law from sufficient proof of sexual activity in turn gives

rise to a permissive inference that the physician exercised

inf luence within the patient - physician relationship for purposes

of engaging the patient in sexual activity . Th e fact finder is

allowed but not required to draw such inference, and the burden

remains throughout on the Department to prove the elemental

fact . 8 / If, despite the allowable inference, the fact finder is

unable to determine that the physician used the patient -

physician relationship as a means to engage the patient in

sexual activity, then the charge of sexual misconduct in the

practice of osteopath ic medicine is not proved, and the presumed

fact of incapacity to give consent becomes irrelevant.

34. In this case, as explained above, the inference of

physician overreaching, together with other circumstantial

evidence which corroborates that implied fact, convinced the

undersigned to determine, as a matter of ultimate fact, that

Simon exercised influence within the patient - physician

relationship for purposes of engaging C.K. in sexual activity.

3 5 . The Board of Osteopathic Medicine imposes penaltie s

upon licensees in accordance with the disciplinary guidelines

prescribed in Florida Administrative Code Rule 64B15 - 19.002.

The range of penalties for a first offense comprising a single

violation of the statutes prohibiting sexual misconduct in the

prac tice of osteopathic medicine is set forth in r ule 64B15 -

19.002(13) as follows:

MINIMUM MAXIMUM

probation denial of

and licensure or

$10,000 revocation and

fine $10,000 fine

3 6 . Aggravating and mitigating circumstances are listed in

r ule 64B15 - 19.003 a nd include without limitation the following:

(1) The danger to the public;

(2) The length of time since the

violations;

(3) The number of times the licensee has

been previously disciplined by the Board;

(4) The length of time the licensee has

practic ed;

(5) The actual damage, physical or

otherwise, caused by the violation;

(6) The deterrent effect of the penalty

imposed;

(7) The effect of penalty upon the

licensee's livelihood;

(8) Any effort of rehabilitation by the

licensee;

(9) The actual know ledge of the licensee

pertaining to the violation;

(10) Attempts by the licensee to correct or

stop violations or refusal by licensee to

correct or stop violations;

(11) Related violations against licensee in

another state, including findings of guilt

or innocence, penalties imposed and

penalties served;

(12) The actual negligence of the licensee

pertaining to any violations;

(13) The penalties imposed for related

offenses;

(14) The pecuniary gain to the licensee;

(15) Any other relevant mitigating or

aggravating factors under the circumstances.

Any penalties imposed by the board may not

exceed the maximum penalties set forth in

Section 459.015(2), F.S.

The undersigned has considered all of these factors and

concludes that none warrants a deviation f rom the recommended

penalties for a first offense involving sexual misconduct with

a n individual patient.

3 7 . Determining the appropriate penalty presents a

challenge nonetheless, for the prescribed range of penalties

starts with probation, which is ser ious but not necessarily

career ending, and tops out at revocation, the severest

punishment that a regulatory board can impose on a licensee.

T he Department urges the undersigned to recommend revocation on

the grounds that Simon poses a danger to the publ ic and did not

himself break off the relationship with C.K. But the Department

has not cited any similar cases in which the Board of

Osteopathic Medicine imposed such a stringent penalty for a

first offense of this nature.

38. At hearing, the Departmen t argued that stern

discipline was warranted based on the types of sexual acts Simon

and C.K. enjoyed. The statutes, however, do not distinguish

between types of sexual activity, much less suggest that some

acts are more opprobrious than others for purpos es of imposing

discipline against a doctor who has had sexual relations with a

patient. At least in the absence of circumstances not proved

here, such as, e.g., sexual violence or aggression, or the

intentional infliction of physical injury or emotional d istress,

all acts falling within the category of "sexual activity" are

equal, and none justifies a harsher penalty than another. That

is why, in this case, a detailed account of the specific sexual

activities was unnecessary. The Department's contention that

Simon is especially culpable for having performed certain sexual

acts is rejected.

39. Simon holds up Department of Health v. Magrann , Case

No. 02 - 4826PL (Fla. DOAH Aug. 5, 2003), rejected in part , Case

No. 2000 - 14334 (Fla. DOH Sept. 22, 2003), as a n apt example of

the board's exercising its discretion soundly in penalizing a

similarly situat ed physician. The undersigned agrees that

Magrann provides guidance in determining a fair penalty here.

In that case, as here, an osteopathic physician had a m utually

consensual sexual relationship with an adult patient. Although

the affair there was briefer (three months) than Simon's with

C.K., the doctor and his paramour in the previous case saw each

other far more frequently, making their relationship rough ly

comparable to the one at hand.

40. Unlike Simon, though, the doctor in Magrann had

actively pursued his initially reluctant patient with

increasingly transparent ploys, resorting eventually, during an

ostensible medical examination, to a risky hands - on approach

which subjected his patient to unsolicited kissing and sexual

touching, making her nervous and uncomfortable. She shed her

misgivings soon enough and became an apparently willing

participant in the ensuing affair, but the facts of Magrann

pain t a much clearer picture of physician overreaching than do

the facts found herein. At a minimum, it cannot fairly be

concluded that Simon's conduct was worse than that of the

physician in Magrann . Therefore, Simon's punishment ÏÏ for the

same offense arisi ng from equivalent if not less blameworthy

circumstances ÏÏ should be in line with the discipline imposed in

the earlier case.

41. Interestingly, in Magrann the administrative law judge

recommended that the board suspend the offending physician's

license fo r one year and impose a $2,000 fine. The Board of

Osteopathic Medicine, however, rejected the recommended

penalties and imposed the following more lenient sanctions:

1. The Respondent shall undergo an in -

depth psychological evaluation coordinated

throug h the Professional's Recovery Network

(PRN) from a psychiatrist, psychologist or

other licensed psychotherapist experienced

in the treatment of boundary

violations/sexual misconduct. The licensee

shall supply a copy of this order to the

evaluator. The ev aluation must contain

evidence that the evaluator knows of the

reason for referral. The evaluator must

specifically advise this Board that the

licensee is presently able to engage in the

safe practice of medicine or recommend the

conditions under which sa fe practice could

be obtained. The Board reserves the right

to impose terms of probation and other

reasonable conditions when the Respondent

appears before the Board to demonstrate the

ability to engage in the safe practice of

medicine.

2. If PRN recom mends that Respondent enter

into monitoring, treatment, or other such

contract, the Respondent shall enter into

said contract and comply with all its

terms. The Respondent shall provide the

Board with a copy of the PRN contract and

execute a release autho rizing PRN to release

information and medical records (including

psychiatric records and records relating to

treatment) to the Board as needed to

monitor the progress of the Respondent. The

Director of PRN shall report to the Board

any instance of noncom pliance, any problems

that may occur with Respondent, and any

violations of Chapter 456 or 459, Florida

Statutes, or any other relevant statute,

within thirty (30) days of the occurrence.

3. The Respondent shall provide the Board

with a copy of the PRN evaluation and

contract (if required by PRN) by

November 5, 2003 and appear before the

Board with a representative from PRN at the

December 5 - 6, 2003 Board meeting in

Orlando, Florida. In the event PRN is

unable to complete Respondent's evaluation

within the above - referenced deadlines,

Respondent shall submit his evaluation to

the Board immediately thereafter and appear

before the Board at the next regularly

scheduled Board meeting.

4. Respondent shall not examine or treat

any female patients outside th e physical

presence of a female Florida licensed

healthcare practitioner.

Thus, the doctor's license was not even suspended, much less

revoked.

42. Another case which is instructive on the issue of

appropriate sanctions is Department of Health v. Cohen , Case

No. 10 - 3101PL, 2010 Fla. Div. Admin. Hear. LEXIS 105 (Fla. DOAH

Sept. 14, 2010; Fla. DOH Jan. 5, 2011). In Cohen , a medical

doctor was found guilty of sexual misconduct with a patient, but

the sexual activity there ÏÏ in co ntrast to the consensual af fair

at the heart of this case ÏÏ was nonconsensual . The doctor

committed a sexual battery upon a patient who had come in to his

office to have her blood pressure checked. Curiously, despite

the egregious nature of the doctor's behavior, the Department

urge d the administrative law judge to impose a less stringent

penalty than was called for under the applicable guidelines, and

proposed that his license not be suspended. The ALJ, however,

recommended that the doctor's license be suspended for one year,

toget her with other sanctions including two years of probation

after reinstatement and a $5,000 fine. The Board of Medicine

adopted the penalty recommended by the ALJ.

43. Cohen is distinguishable because the sexual misconduct

which gave rise to the discipli nable offense was clearly more

wrongful than Simon's. The doctor's behavior in Cohen was

criminal in nature; the same cannot be said of Simon's affair

with C.K. Significantly, even under the facts of Cohen , the

offending doctor's license was not revoked, and if the

Department had gotten its way, his license would not have been

suspended, either.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board of Osteopathic Medicine

enter a final order findin g Simon guilty of committing se xual

misconduct with a patient, which is punishable under

section 459.015(1)(l), Florida Statutes . Because this is

Simon's first such offense, it is further RECOMMENDED that Simon

be placed on probation for two year s subject to such reasonable

terms and condi tions as the board deems appropriate, and that an

administrative fine of $10 ,000 be imposed.

DONE AND ENTERED this 30th day of July , 201 4 , 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 o f the

Division of Administrative Hearings

this 30th day of July , 201 4 .

ENDNOTES

1 / Petitioner's Exhibit 7 consists of excerpts from Dr. Simon's

deposition. The particular portions that were admitted into

evidence are fully described in the Order on Ob jections to

Deposition Testimony, which was entered on June 25, 2014.

2 / The location of the assignations at issue ÏÏ the doctor's

office ÏÏ is not as telling as it might seem at first blush.

Simon had reasons for not wanting to be seen in public with

C.K., and his office provided a convenient place for C.K. and

him to meet secretly and discreetly. That is not to say,

however, that the location is without significance, for the

medical office is the place where the physician's authority as a

physician ÏÏ and h ence ability to influence a patient ÏÏ is

greatest.

3 / This finding is a function of the conclusive presumption of

incapacity established in section 495.015(1)(l), Florida

Statutes ("A patient shall be presumed to be incapable of giving

free, full, and inf ormed consent to sexual activity with his or

her physician.").

4 / In making these and all f indings of fact herein, the

undersigned is constrained to rely " exclusively on the evidence

of record and on matters officially recognized."

§ 120.57(1)(j), Fla. Stat. (emphasis added). Because C.K. did

not testify at hearing, her version of the relevant events is

dehors the record. The absence of C.K.'s account from the

evidence of record means that the only persuasive proof of what

transpired between Simon and C.K. behind closed doors is Simon's

testimony, which gives an inherently one - sided (and perhaps a

little sanitized) report of the historical facts ÏÏ and does not

include any other statements he might have made outside of this

proceeding that the Department chose not to put into evidence.

5 / "Using the basic tenet of in pari materia to construe

together statutes relating to the same or similar subject matter

does not imply ambiguity." Dep't of Juv. Just. v. Okaloosa

Cnty. , 113 So. 3d 1074 (Fla. 1st DCA 20 13).

6 / If each specific offense defined in section 459.015(1) could

also be punished under paragraph (pp) as a catchall violation of

chapter 459, then every specifically enumerated disciplinable

act (all of which constitute violations of chapter 459) wo uld

give rise to two separate offenses. Obviously that is not the

intended operation of paragraph (pp), whose purpose is to make

an actionable offense out of any administrative violation which

otherwise would not be punishable .

7 / Consent is, however, a factor which reasonably may be

considered in determining the severity of the violation, should

one be found. Generally speaking, a physician who has committed

an actual sexual battery upon a patient, where no consent was

given as a matter of historical f act, should be dealt with more

harshly than one who has had sex with a consenting adult

patient, notwithstanding that the patient's consent, though in

fact given, must be found by operation of law not to have been

"free, full, and informed."

8 / See Ibar rondo v. State , 1 So. 3d 226, 232 (Fla. 5th DCA

2008)(permissive presumption or inference allows but does not

require fact finder to infer the existence of an elemental fact

from proof of a basic fact and places no burden on defendant).

COPIES FURNISHED :

Yolonda Y. Green, Esquire

Mary S. Miller, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

David W. Spicer, Esquire

Jonathan W. Chambers, Esquire

Law Offices of Spicer and Miller, P.L.

11000 Prosperity Farms Road, Suite 104

Palm Beach Gardens, Florida 33410 - 3477

Anthony Jusevitch , Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way , Bin C - 06

Tallahassee, Florida 32399 - 3265

Jennifer A. Tschetter, General Counsel

Depar tment of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.