18-005694PL Department Of Health, Board Of Respiratory Care vs. Jennifer Abadie, R.R.T. Status: Closed Recommended Order on Wednesday, July 17, 2019.

Summary: Dep't of Health did not prove sexual misconduct by clear and convincing evidence. No evidence of intercourse, genital touching, genital exposure, breast exposure, speaking about sex, or the like. A boundary violation does not always equal misconduct.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

RESPIRATORY CARE,

Petitioner,

vs. Case No. 18 - 5694PL

JENNIFER ABADIE, R.R.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division), conducted the

final hearing in this case on May 20, 2019, by video

teleconference at locations in St. Petersburg and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Mary A. Iglehart, Esquire

Christina Arzillo Shideler, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399

For Respondent: Kennan George Dandar, Esquire

Dandar & Dandar, P.A.

Post Office Box 24597

Tampa, F lorida 33623

STATEMENT OF THE ISSUE

Did Respondent, Jennifer Abadie, R.R.T., violate sections

468.365(1)(q), 468.365(1)(x), 456.072(1)(v), or 456.063(1),

Florida Statutes (2018) , 1/ by committing sexual misconduct?

PRELIMINARY STATEMENT

On August 22, 2018, Petitioner, Department of Health, Board

of Respiratory Care (Board), issued an Administrative Complaint

alleging Ms. Abadie engaged in conduct with a patient, G.B., that

violated sections 468.365(1)(q), 468.365(1)(x), 456.072(1)(v),

and 456.063(1), Florida Statutes. "Sexual misconduct" is the

crux of the charges.

Ms. Abadie filed an Answer and Defenses and requested a

formal administrative hearing. On October 26, 2018, the Board

referred the matter to the Division for conduct of the hearing.

On November 19, 2018, the hearing was set to begin January 3,

2019. The parties moved jointly for a continuance on December 5,

2018. The motion was granted. The undersigned rescheduled the

hearing to begin Febr uary 25, 2019. On February 14, 2019,

Ms. Abadie moved to continue the hearing because of counsel's

medical problems. The Board opposed the motion. The motion w as

granted. The hearing was re scheduled for May 20 and 21, 2019.

The undersigned conducted the hearing as noticed.

The Board presented testimony from Charity Forest, L.P.N.;

Se an Flynn, L.P.N.; Lisa Isabelle; and Ruth Schneck, L.P.N. The

Board also submitted the deposition testimony of William Hall,

R.R.T., characterized as expert witness testi mony, as

Petitioner's Exhibit 3.

The parties entered 14 joint exhibits: J t. Ex. 1 - J t. Ex.

14. The Board entered three additional exhibits, P et. Ex . 1 Î 3.

Ms. Abadie testified on her own behalf. Ms. Abadie did not

offer additional exhibits.

The T ranscript of the proceeding was filed June 18, 2019 .

The Board filed Petitioner's Exhibit 3 on June 26, 2019. The

parties timely filed proposed recommended orders. They have been

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Section 20.43 and chapters 456 and 468, Florida

Statutes, charge the Board with regulating the practice of

respiratory care in Florida.

2. Ms. Abadie is a licensed registered respiratory

therapist in Florida.

3. Ms. Abadie worked for Comprehensive H ealthcare of

Clearwater (Comprehensive) from October 24, 2017, through

February 4, 2018, at its Pinellas County, Florida, location.

Comprehensive is a residential rehabilitation and nursing

facility.

4. Ms. AbadiesÓs 89 - year - old father was a patient at

Co mprehensive from before she started working there until his

death. He suffered from dementia. Ms. Abadie visited her father

frequently, before and after her shifts and when she was not

working.

5. G.B. was a severely ill patient at Comprehensive trying

to recover from multiple strokes. G.B. was only 56 years old.

However, he had extensive medical conditions . They includ ed

hypertension, congestive heart failure, fibromyalgia, diabetes,

blindness and end - stage renal (kidney) disease. G.B. received

dial ysis three times a week for his kidney disorder. He took

dozens of medications daily.

6. G.B. also had a tracheostomy. A tracheostomy is a tube

that goes into the trachea to help people with impaired breathing

breathe. The heavy treatment load weighed on G.B.

psychologically and caused him anxiety and depression.

7. Ms. Abadie provided respiratory therapy services to G.B.

8. G.B. recognized Ms. Abadie from an earlier time when she

worked at Florida Hospital where he had been a patient. He

r eminded her of that time and established a friendship with her.

Over time, the friendship grew closer. As a result of their

friendship and Ms. Abadie's compassion for G.B., Ms. Abadie and

G.B. spoke regularly. When Ms. Abadie visited her father, she

usu ally checked on G.B. He and Ms. Abadie talked about the range

of subjects that acquaintances talk about including families,

children, marital status, holiday plans, and day - to - day lives.

They spoke regularly by telephone as well as in person. Although

t hey spoke regularly, Ms. Abadie and G.B. did not always speak at

length. Sometimes she just waved and poked her head in to say

hello. At G.B.'s request, Ms. Abadie brought him items from

outside the facility , such as toiletries and a blanket.

9. G.B. g rew very fond of Ms. Abadie and wanted her as his

girlfriend and eventually his wife. Ms. Abadie did not encourage

or reciprocate these feelings or intentions.

10. Lisa Isabelle was G.B.'s only other visitor. G.B. was

a friend of her husband. She had k nown G.B. for most of their

lives. Ms. Isabelle rented G.B. a residence on her property.

Ms. Isabelle described her relationship with G.B. as "love - hate."

Ms. Isabelle held a durable power of attorney for G.B. His

family lived out of town and decided i t would be good for

somebody local t o hold the power of attorney.

11. On Sunday, February 4, 2018, Ms. Abadie came to

Comprehensive to visit her father. She wanted to watch the

Eagles play in the Super Bowl with him. Their family is from

Philadelphia. Ms. Abadie stopped at G.B.'s room first.

1 2 . Charity Forest, L.P.N., was on - duty that day. G.B. was

one of her patients.

13 . Towards the end of the first of her two shift s ,

Ms. Forest noticed that the curtain by G.B.Ós bed was pulled

halfway around his bed, which was unusual. The door was open.

Ms. Forest entered G.B.Ós room and looked around the curtain.

14 . She saw G.B. and Ms. Abadie sitting on the bed, on top

of the covers. The head of the bed was raised about 45 degrees

to pr ovide a backrest. G.B. was wearing long pajama pants but

not wearing a shirt. Ms. Abadie was wearing jean shorts, a

T - shirt, and Keds®. Ms. Abadie was resting her feet on her iPad®

so she would not dirty the covers. G.B. and Ms. Abadie were not

touchi ng each other. They were talking, watching television, and

looking at pictures on Ms. Abadie's telephone. The room was a

two - bed room. There was a patient in the other bed.

15 . Ms. Forest thought that the two sitting on the bed was

inappropriate and left in search of her supervisor. Ms. Forest

could not locate her supervisor. But she met another L.P.N.,

Ruth Schneck. Ms. Forest told Ms. Schneck what she had observed.

16 . Ms. Schneck went to G.B.'s room. The door was open.

Ms. Schneck briefly e ntered the room. G.B. and Ms. Ab adie were

still sitting on the bed. Ms. Schneck left immediately, closing

the door behind her. She joined the search for the supervisor.

Neither Ms. Schneck nor Ms. Forest could locate the supervisor.

17 . While looking for the supervisor, Ms. Forest and

Ms. Schneck encountered Sean Flynn, L.P.N. They told him what

they had seen. Mr. Flynn was a licensed practical nurse and a

case manager at Comprehensive. He had come to the facility

briefly that day in order to take care of some paperwork.

18 . After talking to Ms. Forest and Ms. Schneck, Mr. Flynn

went to G.B.Ós room and opened the door. Ms. Abadie and G.B.

were sitting on the edge of the bed facing the door. Mr. Flynn

asked them if anything was go ing on. They said no.

19 . Mr. Flynn left the room and called Nicole Lawlor,

Comprehensive's Chief Executive Officer. Ms. Lawlor told

Mr. Flynn to return to G.B.'s room, instruct Ms. Abadie to leave,

and tell her that she would be suspended pending an

investigation.

20 . He returned to G.B.'s room with Ms. Forest and

Ms. Schneck. G.B. and Ms. Abadie were still sitting on the bed.

Mr. Flynn asked Ms. Abadie to step outside. She did. G.B. soon

followed in his wheel chair. Mr. Flynn told Ms. Abadie t hat she

was suspended and had to leave. G.B. overheard this and became

very upset and aggressive. He insisted that Ms. Abadie was his

girlfriend and that he wanted her to stay.

21 . Ms. Abadie asked to visit her father before she left.

Mr. Flynn agree d. Ms. Abadie visited her father for a couple of

hours. Ms. Abadie also called Ms. Isabelle to tell her that

Mr. Flynn asked her to leave and that G.B. was very upset.

22 . After Ms. Abadie's departure, G.B. became increasingly

upset and loud. His beha vior escalated to slamming doors and

throwing objects. Comprehensive employees decided G.B. was a

danger to himself and others and had him involuntarily committed

under Florida's Baker Act at Mease Dunedin Hospital.

23 . On her way home, Ms. Abadie rece ived a telephone call

offering her full - time employment at Lakeland Regional Hospital.

February 4, 2018, at 6:08 p.m., Ms. Abadie submitted her

resignation from Comprehensive in an e - mail to Ms. Lawlor.

24 . Ms. Abadie's only patient/caregiver relations hip with

G.B. was through her employment with Comprehensive. As of

6:08 p.m. on February 4, 2018, G.B. was not a patient of

Ms. Abadie. She no longer had a professional relationship with

him.

25 . Ms. Lawlor suspended Ms. Abadie on February 4, 2018.

S he based her decision on the information that Ms. Forest,

Ms. Schneck, and Mr. Flynn told her , not all of which is

persuasively established or found as fact in this proceeding .

Still, Ms. Lawlor's memorandum suspending Ms. Abadie reveals that

the nature of G.B.'s relationship with Ms. Abadie and the events

of February 4, 2018, were not sexual. Ms. Lawlor's Employee

Memorandum suspending Ms. Abadie does not identify a state or

instituti on rule violated in the part of the form calling for

one. She wrote "Flagrant violation of code of conduct." The

description in the "Nature of Infraction" section of the form

reads, "Employee was found cuddling in bed with a resident during

her time off. " There is no mention of sex, breasts, genitalia,

or sexual language.

26 . None of the varying and sometimes inconsistent accounts

of the day mention touching or exposure of breasts, buttocks, or

gen i talia. None of the accounts describes or even alludes to sex

acts or statements about sex. The only kiss reported is a kiss

on the cheek that G.B. reportedly forced upon Ms. Abadie as she

was leaving.

27 . The deposition testimony of the Board's "expert,"

offers many statements showing that what the Board co mplains of

might be called "inappropriate" or a "boundary violation" but

does not amount to sexual misconduct. He testifie d about the

strain a patient expressing romantic feeling s toward a therapist

puts on the professional relationship. He says the prof essional

should tell the patient that the statements are inappropriate.

The witness says that if the patient starts expressing the

romantic feelings by touching the therapist, the therapist must

tell the patient that his behavior is inappropriate and begi n

recording the events for the therapist's protection so that "no

inappropriate allegations are made later." (J t. Ex. 3, p. 3).

Asked his opinion about allegations that Ms. Abadie was laying on

G.B.'s bed, the witness says the behavior "crossed a profess ional

boundary" and that he was not aware of the "behavior being

appropriate in any situation." (J t . Ex. 3, p. 16). The witness

acknowledged that a hug is not inherently sexual. (J t. Ex. 3,

pp. 24 & 30).

28 . In addition, the training and experience of the witness

do not qualify him as someone whose opinion should be entitled to

significant weight. Among other things , he has never written

about, lectured about, or testified to an opinion about sexual

misconduct. Had the deposition not been offered without

objection , whether the testimony would have been admissible is a

fair question. § 90.702, Fla. Stat.

29 . After February 4, 201 8 , Ms. Abadie attempted to

c ontinue her friendship with G.B. by telephone calls and visits.

However, Comprehensive refu sed for several weeks , against G.B.'s

wishes, to allow Ms. Abadie to visit G.B. and would only permit

Ms. Abadie brief, supervised visits with her father. G.B. was

very upset by Comprehensive's prohibition of visits from

Ms. Abadie. He began refusing fo od and treatment , including

medications and dialysis. G.B.' s condition deteriorated to the

point that he was admitted to hospice care .

3 0 . At that point, on February 24, 2018, Comprehensive

contacted Ms. Abadie and gave her permission to visit G.B and

lifted restrictions on visiting her father. A February 27, 2018,

e - mail from Shelly Wise, Director of Nursing, confirmed this and

admitted that the Agency for Health Care Administration had

advised that G.B.'s right as a resident to visitors trumped

Compr ehensive's concerns. Ms. Abadie resumed visiting her

friend, G.B. On May 21, 2018, G.B. passed away.

3 1 . G.B. was a lonely, mortally ill man. He initiated a

friendship with Ms. Abadie that she reciprocated. Ultimately, he

developed unfounded feelings about her being his girlfriend and

them having a future together. The clear and convincing evidence

does not prove that the relationship was more than a friendship

or that it was sexual in any way .

CONCLUSIONS OF LAW

32 . Sections 120.569 and 120.57, Flo rida Statutes , confer

jurisdiction of this matter on the Division.

33 . The Board has authority to investigate claimed

violations of and file administrative complaints charging

violations of the laws governing delivery of respiratory care

services. §§ 456.073, 468.354, and 468.353, Fla. Stat.

34 . Because the Board seeks to impose a penalty upon

Ms. Abadie, it must prove its charges by clear and convincing

evidence. Fox v. Dep't of Health , 994 So. 2d 416, 418 (Fla. 1st

DCA 2008) ( citing Dep't of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996) ) .

35 . The Florida Supreme court describes the clear and

convincing burden of proof this way:

This intermediate level of proof entails both

a qualitative and quantitative standard. The

evid ence must be credible; the memories of

the witness must be clear and without

confusion; and the sum total of the evidence

must be of sufficient weight to convince the

trier of fact without hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005).

36 . The burden of proof affects the findings of fact in

this case. Mr. Flynn testified about skin - to - skin contact

between G.B. and Ms. Abadie, for instance. Other testimony

disputed that. The testimony about skin - to - skin contact was not

sufficiently persuasive and corroborated to convince the

undersigned without hesitancy that it was accurate. Ms. Abadie

c onvincingly denied the claim as well. Other inconsistencies

undermined the persuasiveness of testimony. For instance,

several witnesses said that Ms. Abadie was wearing a T - shirt on

April 4, 2018. But Mr. Flynn said she was wearing a red blouse.

37 . Conflicting testimony from Ms. Forest and Ms. Schneck

about when Ms. Forest's shift ended impaired the ability to

conclude without hesitancy that all of their testimony was

accurate. In addition, the witnesses were excited and agitated

during the events o f February 4, 2018. This adds to doubts about

whether the i r observations are clear and without confusion.

Similar uncertainty affects the testimony of Ms. Schneck that she

saw G.B. and Ms. Abadie with covers pulled up to their waist.

38 . There was also conflicting testimony about whether G.B.

pulled at Ms. Abadie when she was leaving and forced a kiss upon

her cheek. However, even the testimony about a kiss stated that

G.B. forced it and that Ms. Abadie resisted.

39 . The Board alleges that Ms. Abadie v iolated sections

468.365(1)(q), 468.365(1)(x), 2/ 456.072(1)(v), or 456.063(1).

All of the Board's charges amount to charging Ms. Abadie with

sexual misconduct with G.B.

40 . Section 468.365(1)(q), Florida Statutes, makes

"[e]xercising influence within a respiratory care relationship

for the purpose of engaging a patient in sexual activity" grounds

for disciplinary action. Section 456.072(1)(v) makes "[e]ngaging

or attempting to engage in sexual misconduct , " as defined in

section 456.063(1) grounds for disciplinary action. Section

456.063(1) defines and prohibits sexual misconduct. It states:

Sexual misconduct in the practice of a health

care profession means violation of the

professional relationship through which the

health care practitioner uses suc h

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 outs ide the scope of

the professional practice of such health care

profession. Sexual misconduct in the

practice of a health care profession is

prohibited.

41 . Well - established principles govern interpretation and

application of these statutesibunals m ust construe

disciplinary statutes strictly in favor of the person subject to

the penalty. Griffis v. Fish & Wildlife Conser. Comm'n , 57 So.

3d 929, 931 (Fla. 1st DCA 2011); Munch v. Dep't of Prof'l Reg.,

Div. of Real Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992). "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."

McClung v. Crim. Justice Standards & Training Com. , 458 So. 2d

887, 888 (Fla. 5th DCA 1984).

42 . Many court opinions and agency orders provide examples

of the activities that violate the required narrow interpretation

of the charged and similar statutes. Sharing personal sexual

stories with a patient, gr abbing a patient's buttocks, and

forcibly trying to kiss a patient are acts of sexual misconduct.

Kruse v. DepÓt of Health , 270 So. 3d 475 (Fla. 1st DCA 2019).

Furtively touching and rubbing the private areas of female

patients is sexual misconduct. San chez v. State Dep't of Health ,

225 So. 3d 964 (Fla. 1st DCA 2017). Sexual intercourse with a

patient during a medical examination is sexual misconduct. Field

v. Dep't of Health , 902 So. 2d 893 (Fla. 1st DCA 2005). A male

provider who exposes his genital s to minor female patients

commits sexual misconduct. Machiela v. Dep't of Health, Bd. of

Optometry , 995 So. 2d 1168 (Fla. 4th DCA 2008). Touching a

patientÓs breasts and buttocks during a massage is sexual

misconduct. Nath v. State Dep't of Health , 100 So. 3d 1273 (Fla.

1st DCA 2012). Attempting to forcibly kiss a patient, removing

the patient's covering sheet completely, and touching the

patient's labia during a chiropractic treatment is sexual

misconduct. Dep't of Health v. Kian , Case No. 18 - 0 2 63PL (Fla.

DOAH July 27, 2018; Fla. DOH Sept. 20, 2018). Offering oral sex

to a massage therapist client is sexual misconduct. Dep't of

Health v. Li , Case No. 18 - 0 898 PL (Fla. DOAH May 18, 2018; Fla.

DOH Mar . 25, 2019).

43 . In contrast, behavior that may be "inappropriate" or a

boundary violation does not necessarily amount to a disciplinary

offense. See Dep't of Health v. Mahatre , Case No. 12 - 1705PL

(Fla. DOAH May 18, 2018; Fla. DOH Mar . 25, 2019). All sexual

misconduct is a boundary violation. All bo undary violations are

not sexual misconduct. Possible inappropriate behavior or a

boundary violation is, at worst, what the clear and convincing

evidence in this record proves. A strict construction of

statutes that the Board charges Ms. Abadie with viol ating could

not reasonably be construed to cover the actions established by

the evidence and recounted in the Findings of Fact. Clear and

convincing evidence did not establish sexual misconduct.

44 . The Board also seeks to discipline Ms. Abadie for

alleg ed sexual misconduct on May 20, 2018. At that point, G.B.

had not been Ms. Abadie's patient for over three and one - half

months. Consequently, any actions she took that day did not

involve a professional relationship with G.B. and could not be a

violation of the statutes. In addition, the record of what

happened that day does not establish sexual misconduct by clear

and convincing evidence.

RECOMMENDATION

Based on the preceding Findings of Fact and Conclusions of

Law, it is recommended that Petitioner, Department of Health,

Board of Respiratory Care, dismiss the Administrative Complaint.

DONE AND ENTERED this 17th day of July , 2019 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 17th day of July , 2019 .

ENDNOTE S

1/ All citations to Florida Statutes are to the 2018

codification.

2/ This order does not discuss section 468.365(1)(x), Florida

Statutes, because it is superfluous. The section just makes

violating chapters 468 or 456 of the Florida Statutes or

implementing Board rules a violation.

COPIES FURNISHED:

Kennan George Dandar, Esquire

Dandar & Dandar, P.A.

Post Office Box 24597

Tampa, Florida 33623

(eServed)

Mary A. I glehart, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Christina Arzillo Shideler, Esquire

Florida Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Breanna Raspopovich

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

Louise Wilhite - St . Laurent, General Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Allen Hall, Executive Director

Board of Respiratory Care

Florida Department of Health

4052 Bald Cypress Way , Bin C - 05

Tallahassee, Florida 32399

(eServed)

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.