14-001077PL Department Of Health, Board Of Osteopathic Medicine vs. Joseph Miller, D.O. Status: Closed Recommended Order on Wednesday, July 30, 2014.

Summary: Respondent utilized his physician-patient relationship to engage or attempt to engage a patient in sexual activity. Recommend revocation of Respondent's license and the imposition of a $10,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

OST E OPATHIC MEDICINE ,

Petitioner,

vs. Case No. 14 - 1077 PL

JOSEPH MILLER, D.O. ,

Respondent.

________________________________ /

RECOMMENDED ORDER

Administrati ve Law Judge Edward T. Bauer held a final

hearing in this case by video teleconference betw een sites in

Tallahassee and Gainesville, Florida, on May 30, 2014.

APPEARANCES

For Pet itioner: Candace A. Rochester , Esquire

Carol L. Gregg , Esquire

Hillary Anne Ryan, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Joseph Mil ler, D.O., pro se

3250 Northeast 28th Street, Suite 805

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Administ rative Complaint and ,

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 17, 2012 , Petitioner, Department of Hea lth,

Board of Osteopathic Medicine , filed an Administrative Complaint

("Complaint") agai nst R espondent, Dr. Joseph Mi ller . In Count I

of the Complaint, Petitioner contends that Respondent exercised

influence within a patient - physician relationship fo r p urposes

of engaging in sexual activity, contrary to section

459.015(1)(l), Florida Statutes. As an overlapping charge,

Petitioner alleges in Count II that Respondent engaged or

attempted to engage in sexual misconduct, in violation of

section 456.072(1)(v), Florida Statutes.

Respondent timely requested a formal hear ing to contest the

allegations a nd, on March 11, 2014 , the matter was referred to

the Division of A dministrative Hearings ( " DOAH " ) and assigned to

Administrative Law Judge John G . Van Laningham. On May 29,

2014 , Judge Van Lani ngham transferred this cause to the

unders igned for further proceedings.

As noted ab ove, the final hearing in t his matter was held

on May 30, 2014, during which Petitioner presented the testimony

of four witnesses (patient T.S., Kathleen Powers, Dodi Pruitt,

and Linda Colaianni) and intro duced seven exhibits, numbered 1

through 6 and 8. 1 / Respondent presented no witness testim ony,

but introduced one exhibit, identified as Respondent's

Exhibit I .

The final hearing Transcript was f iled with DOAH on

June 30, 2014. Both parties submitted proposed recommended

orders, which the undersigned has considered in the preparation

of this Recommended Order. 2 /

FINDINGS OF FACT

A. The Parties

1 . Petitioner Department of Health has regulatory

jurisdiction over licen sed osteopathic physicians such as

Respondent . In particular, Petitioner is autho rized to file and

prosecute an administrative complaint, as it has done in this

instance, when a panel of the Board of Osteopathic Medicine has

found probable cause to suspect that the licensee has committed

one or more disciplinable offenses.

2. At all times material to this proceeding, Respondent

was licensed to practice osteopathic medicine in the State of

Florida , having been issued license number OS 10658.

B. Background

3 . On February 3, 2012, T.S., a 26 - year - o ld single mother ,

presented to R espondent's medical offi ce as a new obstetrical

patient . At that time, T.S. was carrying her third child.

4. For the next five months, T.S. and Respondent enjoyed

what was, by all appearances, a productive and appropriate

physician - patient relationsh ip. However, a s discussed below,

Respondent would transgress the bounds of that relationship

during an office visit on the evening of July 11, 2012. First,

though , it is necessary to sketch the relevant background.

5. On th e morning of July 11, 2012, T.S. ÏÏ who was then

nine months pregnant ÏÏ appeared at Respondent's o ffice for a

routine examination. During the visit, T.S. advised Respondent

that she was experiencing substantial cramping and discomfort.

In response to these complaints, Respondent perf ormed a pelvic

examination and a sonogram, both of which yielded normal

results.

6. Later that day, at approximately 4:00 or 4:30 p.m.,

T.S. telephoned Respondent's office and informed his staff of a

new sympto m: namely , that significant pain was making it

difficult to lift her right arm . Although a member of the staff

advised T.S. that she could be seen immediately, logistical

constraints made it impossible for her to report to Respondent's

offic e prior to the close of business .

7. Over the course of the next several hours, T.S.

communicated with Respondent by phone and text (his cell number

was available to all patients) concern ing the new symptom and

her preference to be seen that evening. Ultimately, Respondent

informed T.S., via a text message sent at approximately

6:15 p.m. , that she could meet him at his office for an

examination .

C. The Misconduct

8. T.S. arrived at the office at 6:30 p.m ., whereupon

Respondent unlocked t he front door and invited T.S. inside.

Upon entering the lobby ar ea, which was only partially

illuminated, T.S. saw no sign of Respondent's office staff. At

that point, Respondent asked T.S. to sign a form that read as

follows:

I give consent to be seen at Dr. Miller's

office, by Dr. Miller, without an assistant

presen t, at my request, in order to have a

medically urgent need addressed.

9. The foregoing document, although signed by T.S., is of

dubious propriety, as obstetric al treatment without a chaperone

present is rarely, if ever, appropriate . 3 / This issue is of no

moment , however, for most of what occurred next ÏÏ as established

by the credible testimony of T.S. and Petitioner's expert

witness ÏÏ was not a legitimate medi cal examination but, rather,

nonconsensual sexual contact perpetrated under the guise of an

exami nation .

10. Upon the execution of the "consent" document,

Respondent directed T.S. to an examination room and informed her

that the likely cause of her arm pain was either a clogged milk

duct or the positioning of t he fetus. Respondent then requested

t hat T.S. disrobe her upper body, at which point he left the

room for a few moments.

11. U pon his return, Respondent asked T.S. to recline on

the examination table , purportedly so he could examine her right

breast to rule out the possibility of a clogge d duct . T.S.

complied and, f or the next 30 to 45 sec onds, Respondent squeezed

her breast in a manner quite dissimilar to examinations she had

undergone in the past. In particular, T.S. thought it peculiar

that Respondent "cupped" h er entire breast with h is hand ÏÏ as

opposed to examining the breast from the outside in with the

pads of his fingers. 4 / E ven more troublingly, Re spondent asked

T.S., while his hand was st ill in contact with her b reast,

whether "it felt good." 5 /

12. After removing his hand fr om T.S.'s breast, Respondent

remarked to T.S. that her arm pain was not th e result of a

clogged milk duct. Respondent further stated that her symptoms

would be assuaged upon the baby's delivery, an event which ,

according to him, could be fac ilitated by se xual activity.

13 . Before proceeding further, it is important to note

that T.S.'s symptoms of arm pain arguably warranted, at most , a

legitimate breast examination. In other words, there were no

symptoms or aspects of T.S.'s history that justified a pel vic

examination at that time, 6 / particularl y since Respondent had

performed such a procedure (along with a sonogram) earlier in

the day.

14 . Nevertheless , Respondent informed T.S. that he

"needed" to mea sure the dilation of her cervix; then, in a

disturb ing and conspicuous departure from accepted obstetrical

practice, 7 / Respondent applied lubricant to one of his ungloved

hands. Moments later, Respondent inserted two fingers into

T.S.'s v agina and, for the next 30 seconds or so , positioned his

penetrating hand in such a manner that his thumb was in

continuous contact with T.S.' s clit oris ÏÏ something that would

never occur during a proper examination. 8 / Tellingly , t his was

not the only physical contact incongruous with a legiti mate

pelvic examination , for a t one point Respondent used his free

hand to pull on one of T.S.'s nipples . 9 /

15 . By now suspicious of Respondent's conduct , T.S.

attempted to maneuver her body toward the head of the

examination table. As she did so, Respondent began to remove

his fi ngers from T.S.'s vagina while stating that she "needed to

have sex" in order to induce labor. This could be accomplished,

Respondent further suggested, by having sex with him , an

invitation T.S. sensibly declined. 10 /

16 . On the heels of thi s rejection , Respondent told T.S.

that the only other means of inducing labor would be to "strip

her membranes." Owing perhaps to an urgent desire to give

birth ÏÏ the reader should recall that she was nine months

pregnant and in significant discomfort ÏÏ T.S. acceded t o

Respondent's suggestion. Respondent then penetrated T.S.'s

vagina with his (u ngloved) hand for a second time and , prior to

the removal of his fingers , repeatedly implored T.S. to engage

in sexual intercourse with him. 11 / When T.S. refused and tried

to m ove to the other end of the table, Respond ent grab bed her by

the hips and pulled his midsection into her exposed vaginal

area. By vir tue of this aggression , T.S. could feel t hat

Respondent's penis, albeit clothed, was erect. 12 /

17 . Wishin g to extricate h erself from this situation, T.S.

pushed Respondent away, at which point he attem pted to "laugh

off" his abhorrent behavior . T.S. dressed herself and, a short

time later, drove to the hom e of an acquaintance to seek advice .

18 . L ater that evening, T.S. made a report of the incident

to the appropriate authorities, 13 / which ultimately resulted in

the filing of the Complaint at issue in this proceeding.

D. Ultimate Factual Determinations

19 . It is determine d, as a matter of ultimate fact, that

Respon dent is guilty o f violating section 459.015(1)(l ), as

charged in Count I of the Complaint.

20 . It is further determined, as a matter of ultimate

fact, that Respondent is guilty of violating section

456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged

in Count II of the complaint.

CONCLUSIONS OF LAW

A. Jurisdiction

21 . DOAH has jurisdiction over the parties and subject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes .

B. The Burden and Standard of Proof

22 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent ' s licen se to practice osteopathic

medicine . Accordingly, Petitioner m ust prove the allegations

contained in the Complaint by clear and convincing evidence.

Dep ' t of Banking & Fi n., Div. of Secs. & Investor Prot. v.

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

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

23 . Clear and convincing evidence:

[R]e quires that the evidence must be found

to be credible; the facts t o 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 convicti on,

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. Statutory Construction/Notice

24 . Disciplinary statutes and rules "must be construed

strictly, in fav or 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); McClung v. Crim.

Just. Stds. & Training Comm'n , 458 So. 2d 887, 888 (Fla. 5th DCA

1984)("[W]here a sta tute provides for revocation of a license

the grounds must be strictly construed 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.").

25 . Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. Trevisani v.

Dep't of Health , 908 S o. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint"); Delk v. Dep't of Prof'l Reg. , 595 So. 2d 966,

967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated . ") .

D . The Charge s Against Respondent

26 . In Count I of the Complaint, Petitioner charges

Respondent with violating section 459.015(1)(l), a provis ion

that subjects a physician to discipl ine for exercising

" influence within a patient - physician relationship for purposes

of engaging a patient in sexual activity. " Section

459.015(1)(l) further instructs that a " patient shall be

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

cons ent to sexual activity with his or her physician. "

27 . T he factual findings detailed above , which need not be

repeated , demonstrate clearly and convincingly that Respondent

leveraged his physician - patient relationship with T.S. for the

purpose of engag ing her in sexual activity. As such, Respondent

is guilty of Count I.

28 . As an overlapping charge , Petitioner alleges in Count

II of the C omplaint that Respondent has violated section

459.015(1)(pp), a provision that subjects a licensee to

discipline f or running afoul of any p rovision of chapter 456, by

"[e] nga g ing or attempting to engage in sexual m isconduct," which

is prohibited by section 456.072(1)(v). In turn, section

456.063(1), Florida Statutes, defines "sexual misconduct" as:

Sexual misconduct in the practice of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate

family member, guardian, or representative

of the patient or client in, or to induce or

attempt to induce such person to engage in,

verbal or physical sexual activity outside

the scope of the professional practice of

such health care profession.

(Emphasis added).

29 . As with Count I, the record evidence leaves the

undersigned with no doubt that Respondent utilized his

physician - patient relationship with T.S. to engage or attempt to

engage her (or, relatedly, to induce or attempt to induce her)

in sexual activity outside the sc ope of the practice of

medicine. Accordingly, Respondent is guilty of Count II.

E. Penalty

30 . In determining the appropriate punitive action to

recommend in this case, it is necessary to consult the penalty

guidelines of the Board of Osteopathic Medic ine, which impose

restrictions and limitations on the exercise of the Board's

disciplinary author ity under section 459.015 . See Parrot Heads,

Inc. v. Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999).

31 . For first violations of sections 459.015(1)(l) and

456.072(1)(v) , the Board's guidelines prescribe a minimum

penalty of probation and a $10,000 fine, with a maximum

punishment of revocation of the license and a $10,000 fine.

Fla. Admin. Code. R. 64B 15 - 19.002 (13 ).

32 . Florida A dministrative Code Rule 64B15 - 19.003(3)

provides that, in applying the p enalty guidelines, aggravating

and mitigating circumstances may be taken into account. Such

circumstances include, but are not limited to:

(1) The danger to the public;

(2) The len gth 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

practiced;

(5) The actual damage, physical or

otherwise, caused by the violation;

(6) The deter rent effect of the penalty

imposed;

(7) The effect of penalty upon the

license e' s livelihood;

(8) Any effort of rehabilitation by the

licensee;

(9) The actual knowledge of the licensee

pertaining to the violation;

(10) Attempts by the licensee to corre ct 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 lic ensee

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 f actors under the

c ircumstances. . . .

33 . Although several of the foreg oing factors weigh in

Respondent's favor (the absence of prior discipline , as well as

the effect of a suspension or revocation on Respondent's

livelihood), each of these considerations is substantially

outweighed by the egregious nature of his conduct vis - à - vis

T.S. ÏÏ behavior that presents a substantial danger to the public.

As such, the undersigned agrees with Petitioner that the

revocation of Respondent's license and the imposition of a

$10,000 fine is the appropriate penalty.

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 Osteopathic Medicine finding Respondent guilty of

Counts I and II of the Administrative Complaint; revoking

Respondent's license to prac tice osteopathic medicine; and

imposing a fine of $10,000.00.

DONE AND ENTERED this 30 th day of July, 2014 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 30 th day of July, 2014 .

ENDNOTES

1 / The depositi on transcript of Dr. N. Donald Diebel (identified

as Petitioner 's Exhibit 8 ) has been received in l ieu of the

witness' live testimony.

2 / Unless otherwise noted, all rule and statutory references are

to the versions in effect at the time of the alleged misconduct.

3 / Pet'r Ex. 8, p. 9.

4 / Hr'g Tr. 29:5 - 30:9.

5 / Hr'g Tr. 51:22 - 52:5.

6 / Pet'r Ex. 8 , pp. 10 & 12.

7 / Pet'r Ex. 8 , p. 15.

8 / Hr'g Tr. 33:8 - 24; Pet'r Ex. 8, pp. 13 & 36 - 37.

9 / Hr'g Tr. 35:3 - 12; Pet'r Ex. 8 , p. 13 .

10 / Hr'g Tr. 34:2 - 13.

11 / Hr'g Tr. 35:21 - 37:10.

12 / Hr'g Tr. 37:10 - 18.

13 / In its Complaint, Petitioner alleged that, during an

interview with law enforcement on or about July 20, 2012,

Respondent "admitted to engaging in sexual activity with Patient

T.S." During the final hearing, howe ver, Petitioner abando ned

this position and st ipulated, after some back and forth with the

undersigned, that those portions of the record (including pages

00023 through 00028 of Petitioner's Exhibit 1) referencing the

alleged confession of July 20 would be disregarded in their

entirety . Hr'g Tr. 110: 9 - 116:19.

COPIES FURNISHED:

Candace A. Rochester, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Joseph Miller, D.O.

3250 Northeast 28th Street, Suite 805

Fort Lauderdale, Florida 33308

Anthony Jusevitch

E xecutive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 1701

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

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 issu e the Final Order in this case.