20-003806PL Department Of Health, Board Of Osteopathic Medicine vs. Richard Van Buskirk, D.O. Status: Closed Recommended Order on Wednesday, February 24, 2021.

Summary: Respondent did not engage or attempt to engage in sexual misconduct. Allegations, even if proven, would not establish sexual misconduct as defined in s. 456.036(1); but alleged victim?s testimony cannot be credited.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

O STEOPATHIC M EDICINE ,

Petitioner ,

Case No . 20 - 3806PL

vs.

R ICHARD V AN B USKIRK , D.O. ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings (DOAH) conducted a disputed - fact evidentiary

hearing by Zoom conference on December 9 and 10 , 2020.

A PPEARANCES

For Petitioner: An drew Perrin, Esquire

Corynn Colleen Alberto, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Kathryn Hood, Esquire

Stephanie Clark, Esqu ire

Pennington, P.A.

215 South Monroe Street , Suite 200

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether Respondent violated section 456.072(1)(v), Florida Statutes

(2018), by engaging or attempting to engage in sexual miscond uct.

P RELIMINARY S TATEMENT

On May 26, 2020, the Department of Health (Department or Petitioner)

filed a one - count Administrative Complaint (Complaint) before the Board of

Osteopathic Medicine (Board) against Richard Van Buskirk, D.O. (Dr. Van

Buskirk or R espondent), alleging that Respondent violated section

456.072(1)(v) by engaging or attempting to engage in sexual misconduct as

defined in section 456.063(1), with then - patient, V.C.

Respondent timely filed an Election of Rights, disputing the allegations of

material fact and requesting a disputed - fact evidentiary hearing. The case

was referred to DOAH on August 20, 2020, for the assignment of an

Administrative Law Judge to conduct the requested hearing.

After scheduling input from the parties, the hearin g was initially set for

October 28 through 30, 2020, by Zoom conference. On October 14, 2020, the

parties filed a Joint Motion for Continuance, which demonstrated good cause

and was granted. The hearing was rescheduled for December 9 and 10, 2020,

by Zoom conference, and it went forward as rescheduled.

Prior to the final hearing, the parties filed a Joint Pre - hearing Stipulation

in which they stipulated to a few statements of fact and law. The parties'

stipulations are incorporated below, to the extent rel evant.

At the final hearing, the parties offered Joint Exhibit 1, a composite of

Respondent's medical records for former patient V.C., which was admitted

into evidence.

Petitioner presented the live testimony of V.C.; Maureen Maguire, M.D.;

T.B.; and Ant hony Davis, D.O., who was accepted as an expert in osteopathic

medicine. Petitioner also presented the testimony by deposition in lieu of live

testimony, without objection, of three witnesses who had been subpoenaed by

Petitioner but became uncooperative, nonresponsive, and/or unavailable:

V.D.; Ofer Nissan, P.T.; and Nicholas McKinnon, M.D. Petitioner's Exhibits

1 1 through 3, 7, and 9 through 12 were admitted into evidence. These include

transcripts of depositions of Respondent (Pet. Ex. 3) and of the thre e listed

witnesses who testified by deposition (Pet. Ex. 7, 9, and 10, respectively). 2

Respondent testified on his own behalf and presented the testimony of

Amanda Caudill, Deborah McCarthy, and Walter Ehrenfuechter, D.O.,

accepted as an expert in osteopa thic medicine and osteopathic manipulative

treatment. Respondent's Exhibits 1 through 4, 9, and 10 were admitted.

At the end of the hearing, the parties were advised of the ten - day

timeframe provided by rule for filing proposed recommended orders (PROs),

running from the later of the filing of the transcript at DOAH or the close of

the evidentiary record by issuance of an order ruling on deposition objections.

After discussion, the parties requested an extended deadline of 20 days,

which was granted. 3

The two - volume Transcript was filed on January 4, 2021. Both parties

timely filed their PROs on January 25, 2021 (the 20th day falling on a

1 The version of Petitioner's Exhibit 1 admitted in evidence is a replacement filed on

December 14, 2020, after the hearing, implementing the undersigned's rulings on the record

at the hearing regar ding pages to be included and excluded, and redactions. See Tr. 144 - 147.

2 The parties were permitted to file written objections to specific deposition questions,

answers, and attached exhibits by December 17, 2020, and to file written responses by

Decemb er 22, 2020, to any objections filed by the other party. Respondent timely filed

objections directed to two passages in Mr. Nissan's deposition (Pet. Ex. 9). Petitioner did not

file objections or written responses to Respondent's objections. Respondent's o bjections were

ruled on by Order issued December 28, 2020.

3 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

Recommended Orde r. See Fla. Admin. Code R. 28 - 106.216.

Sunday, making the filing deadline the next business day). Both PROs have

been carefully considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to Florida Statutes are to the 2018

codifications in effect at the time of the conduct alleged to warrant discipline.

See McCloskey v. Dep't of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013).

F INDINGS OF F ACT

1. The Department is the state agency charged with regulating the

practice of osteopathic medicine and prosecuting disciplinary actions on the

Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida

Statutes.

2. Dr. Va n Buskirk is an osteopathic physician. He is licensed to practice

osteopathic medicine in the state of Florida pursuant to license number OS

5899, which has been active in good standing for over 30 years. Prior to the

Complaint, he had never been disciplin ed or had a disciplinary action brought

against him.

3. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to

August 28, 2018.

4. As reflected in V.C.'s medical records, she sought treatment for chronic

and acute pain, primarily in her neck, r ight upper leg, and right groin. V.C.'s

right leg and groin issues caused her pain when walking, weakness on her

right side compared to her left, and inability to lay in bed on her right side.

5. V.C. was referred to Dr. Van Buskirk by a patient who had be en treated

by him and found the treatment helpful.

6. V.C. was treated by Respondent once or twice a month, totaling 13

visits over the nine - and - one - half - month span. A t each visit, V.C. first met

with an assistant who obtained current information from V.C . regarding her

pain issues and medical history/medication. After Respondent reviewed the

information, he proceeded to perform osteopathic manipulative treatment on

V.C. from the top down, meaning he would start on V.C.'s neck and work his

way down. Respon dent spent 35 to 45 minutes treating V.C. each visit.

7. V.C.'s 13 appointments with Respondent were on the following dates:

December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018;

March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018;

and August 14 and 28, 2018.

8. V.C. described Dr. Van Buskirk as completely professional in his

treatment of her for the first ten visits, despite providing treatment each time

in an admittedly sensitive area, her groin.

9. Respondent's prac tice is to ask patients to wear comfortable clothing for

their treatment visits that will allow him to access the areas needing

treatment. V.C., for example, usually was dressed in leggings over underwear

and a tee shirt. For some of the visits, Respondent was able to provide the

osteopathic manipulation, even to the upper leg and groin area, through the

leggings. Sometimes, however, the leggings or their seam placement

int erfered with his ability to adequately sense the tightness, relaxation, and

contracti on of muscles in the treatment area. For some visits, then, he asked

V.C. for permission to go underneath the leggings with one hand, which she

gave each time requested. Respondent did so several times during the first

ten visits, lifting her leggings at t he waistband and putting one hand down

above the middle of her thigh between the leggings and V.C.'s panties. V.C.

said that each of these times, Respondent was completely professional, never

saying or doing anything inappropriate.

10. V.C. also confirmed that Respondent was completely professional on

visit ten on July 10, 2018 , when her recollection was that she had to remove

clothing to provide access for Respondent to administer a cortisone shot in

her right u pper thigh.

11. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike

her other visits, she went to this appointment during a lunch break from

work, and she was wearing shorts instead of leggings. The shorts were bulky,

so she removed them when it came time for her to lie down on the exam

table, face up, for her upper leg and groin area treatment.

12. Respondent testified that his consistent office practice is to offer

patients scrubs and a chaperone when he requests them to remove articles of

clothing for treatment. He recalled havin g to ask V.C. to remove bulky shorts

on one occasion so he could provide treatment to her upper thigh and groin

area. Though Respondent did not specifically recall offering her scrubs or

offering to have someone else come in the treatment room, his belief was that

he acted in accordance with his consistent practice and offered both scrubs

and a chaperone. V.C. did not dispute this account. 4

13. At the hearing, V.C. testified that she was lying face - up on the exam

table, with Respondent standing on her right side at about mid - thigh, so that

her hip was to his left and her feet were to his right. From this position, V.C.

testified that Respondent abruptly "pulled" or "snapped" her underwear from

right to left, exposing her genital area, and rested the heel of his left palm 5 on

her pubic area, while he massaged her right thigh with his right hand. In

describing the positioning of his left hand in more detail, V.C. said that the

base of his thumb was on her pubic hair, and the base of his pinky was just

above her labia. She said Respondent rested the heel of his left palm on her

pubic hair for two to three minutes (but acknowledged that in an earlier

recounting of this incident in 2018, her estimate was one to two minutes).

4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations

to the record evidence. For example, Petitioner proposed findings of fact to the effect that on

July 31, 2018, Respondent neith er offered a chaperone nor had one present, and that

Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record

citations offered as support for these two proposed findings contain testimony that

Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead,

they contain Respondent's testimony that he believes he acted in accordance with his

consistent office practice to make both of those offers that day, and V.C.'s testimony that

there was not a chaperone in the room and that she took off her bulky shorts and lay down

on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not

offered a chaperone or scrubs.

5 V.C. did not use the word "heel," but said "this pa rt" of the palm, while pointing to the lower

part of the palm above the wrist , which is the heel.

14. V.C.'s description, though very de tailed, is physically impossible in a

number of respects, and as such, cannot be credited. To begin with, it is

difficult to envision V.C.'s panties being "pulled" from right to left by someone

standing on her right side. That would entail twisting the pul ling hand to

grasp the panties with the fingers and pull the panties to the side away from

where the person is standing. Assuming the left hand were used to "pull" the

panties from right to left, would that hand have remained holding the panties

on the lef t side so as to expose V.C.'s pubic area? If so, it is difficult to

imagine how the heel of the left palm could have rested on V.C.'s pubic hair.

Further complicating the picture described by V.C., for the base of the left

thumb to be at the top of the res ting palm on V.C.'s pubic hair, with the base

of the pinky at the bottom where the pubic hair ends, just above the labia,

that left hand would have to contort 180 degrees from where the panties had

been pulled (to the left side of V.C.'s pubic area). For t he heel of the left palm

to be resting on V.C.'s pubic area, with the base of the thumb high and the

base of the pinky low, the fingers of the left hand would be pointed to V.C.'s

right side at about the right upper thigh, rather than on the left side of h er

pubic area. 6

15. The physical impediments fare no better if one were to assume that

the panties were pulled left to right by Respondent's right hand. The problem

is that with Respondent standing on Petitioner's right side, it is impossible to

envision e ither left or right hand "pulling" panties away from right to left.

And neither scenario supports V.C.'s description of what happened after the

panties were pulled from right to left , leaving he r exposed. V.C.'s description

6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized

V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb

that was at the top on her pubic hair, with the base of his right pinky at the bottom just

above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was

describing the positioning of Respondent's left ha nd. And, although Petitioner's version

would help with this particular physical difficulty, it does not square with V.C.'s testimony

that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at

the top and base of pinky bel ow, Respondent put his right hand on her right upper thigh and

started massaging her leg.

of what Respondent did with his left hand defies physics. But V.C. also said

that while the heel of Respondent's left hand rested on her pubic area,

Respondent put his right hand on V.C.'s right thigh and began massaging her

leg. With both of Respondent's hands now occupied on V.C.'s rig ht side (heel

of left palm resting on pubic area, base of left thumb high, base of left pinky

low, fingertips at about V.C.'s upper right thigh; right hand on right upper

thigh massaging her leg), neither hand could have been holding V.C.'s

panties to the left side of her pubic area so as to keep her exposed.

16. While V.C. described Respondent's pulling or snapping of her panties

from right to left to expose her, followed by him resting the heel of his left

palm on her pubic hair while he massaged her rig ht thigh with his right

hand, she could not recall whether, when, or how her panties returned to

their rightful position. But elastic on panties makes a snapping sound when

it returns into position after having been displaced. If V.C.'s panties had been

pu lled to the side exposing her pubic area, one would expect a "snapping"

sound when the panties were released and the elastic would snap back into

place. V.C.'s description did not seem to add up for this reason, too.

17. V.C. said that she did not react to Respondent's actions by saying or

doing anything, such as expressing her discomfort or distress, or stopping the

treatment session early. Instead, V.C. said that she was in shock, so that

after the one - to - two or two - to - three minute left heel - of - palm rest on her pubic

hair, Respondent completed his regular course of treatment for another five

or more minutes. V.C. acknowledged that Respondent never said anything

inappropriate to her at any point.

18. Respondent flatly denied V.C.'s account of inappropri ate moving of her

panties or inappropriate touching of her pubic area. According to Respondent,

he never moved V.C.'s panties, but instead, provided the same osteopathic

manipulation to her upper leg and groin area as he had at every other visit,

except th is time V.C. had removed her bulky shorts, while remaining covered

by her panties. Respondent never observed any discomfort or distress by V.C.;

and, as she acknowledged, she never expressed discomfort or distress.

1 9 . V.C. described her own uncertainty a t the time as to whether what she

perceived had been a mistake or an accident. She never said anything to

Respondent or to his staff after the treatment session. She went to the

receptionist desk, paid, and scheduled her next appointment for two weeks

late r, on August 14, 2018.

20 . V.C.'s testimony was inconsistent regarding whether she spoke with

anyone about the July 31, 2018, treatment session between that day and her

next appointment. She testified that she did not report the incident to anyone

during t he two weeks after the treatment session on July 31, 2018. But she

also said that she spoke with her friend, T.B., for whom she works, that

afternoon (July 31, 2018) when she returned to work, because, according to

V.C., she was visibly distressed and T.B. asked her what was wrong.

2 1 . Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s

testimony. However, T.B. testified that he had a conversation at work with

V.C. "in approximately November" 2018 that he initiated, not because he had

o bserved V.C. in obvious distress, but because her performance was off that

day. To explain why her performance was "off," she told T.B. she was upset

because she had an experience at the doctor's office that was bothering her.

She gave little detail, sayin g only that the doctor had touched her

inappropriately. According to T.B., "she did say that it wasn't sex, that it was

just inappropriate touching." (Tr. 120).

2 2 . V.C. had been seeing a psychiatrist for medical management of

depression and insomnia. At her appointment on August 3, 2018, three days

after the July 31 treatment session with Respondent, V.C. did not mention

any incident to her psychiatrist.

2 3 . V.C. went to her next appointment with Respondent on August 14,

2018. She did not say anything to Respondent or his staff regarding the

July 31 treatment session. Respondent provided the same osteopathic

manipulative treatment he had performed the previous 11 visits. V.C.

testified that Respondent was completely professional in both actions and

words d uring the August 14 treatment session. After the session, she paid

and scheduled her next appointment for August 28, 2018.

2 4 . V.C. went to the August 28 treatment session wearing leggings and a

tee shirt. Respondent provided the same osteopathic manipulat ive treatment

he had performed the previous 12 visits. When he started the treatment to

her upper thigh and groin area, he was having difficulty sensing a particular

tendon in the lateral groin area, to the right side of her groin. He requested

permission to put one hand underneath her leggings, as he had previously

done for some of the treatments to this area, and she gave her permission as

she had previously.

2 5 . Respondent testified that when he went to lift up V.C.'s leggings at the

waistband, he accid entally lifted both her leggings and her panties, sliding

his hand down towards her right thigh to position his sensing finger on the

tendon to the right side of her groin. He did not realize that he had

accidentally lifted her panties too until he put his palm down to sense the

tendon just to the right of her groin, a little to the left of her right hip bone,

and he felt skin under his palm instead of the cloth of her panties. He

immediately started removing his hand.

2 6 . At the same time Respondent reali zed his palm had come to rest on

V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not

comfortable with this." Respondent had already begun removing his hand as

V.C. spoke.

2 7 . At the hearing, V.C. described this incident the same as Respondent

did, with one exception. According to V.C., Respondent lifted her leggings and

underwear with his right hand, then slid his left hand down the center, and

that his palm came to rest on her pubic area, with his middle finger

extending to where th e pubic hair ends, just above her labia. She agreed that

Respondent's palm made contact with her for just an instant. She said that as

soon as she felt the contact, she spoke up and he immediately removed his

hand.

2 8 . Respondent emphatically denied that h e made contact with V.C.'s

genitals or pubic area. He described with great specificity exactly where he

had put his hand, and why. For the work he was trying to perform on V.C.'s

lateral groin, he was trying to sense a tendon located about one to one and

o ne - half inches to the left of V.C.'s right hip bone (on the front part of the

pelvis), at about belt - line (perhaps a low - slung belt). At that location, his

hand was four inches to the right of the middle of the pubic bone, which is

where his hand would hav e been according to V.C.'s description. Respondent's

detailed explanation, which he demonstrated during the hearing, was

credible and is credited.

2 9 . Other than V.C.'s one statement Ð "I am not comfortable with this" Ð

she said nothing to Respondent about t he incident. V.C. did not stop the

treatment session early. Instead, Respondent completed the osteopathic

manipulative treatment.

30 . V.C. acknowledged that Respondent never said anything

inappropriate or unprofessional during the August 28 treatment sess ion or at

any previous session.

3 1 . V.C. testified that after the treatment session, she did not say

anything to staff about the incident, but paid and ran out of the office. 7 When

she got to her car, she telephoned Maureen Maguire, who is her friend and,

also, her gynecologist. V.C. testified that she told Dr. Maguire about the

incident that had just occurred, and about the earlier incident. V.C. recalls

Dr. Maguire telling V.C. about a similar incident she had experienced when

she was going to a massage t herapist.

3 2 . At the hearing, Dr. Maguire confirmed that V.C. called after the

second incident to tell her about both incidents. V.C. told Dr. Maguire that

7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office .

V.C. did not show any sign of distress .

the first time, Respondent "was doing a manipulation in her groin area and

that his hand went where it should not have gone." (Tr. 107). V.C. told her

she went back to give Respondent another chance because she had come to

love and trust him, "and it happened again but it was even more aggressive

of hand in the wrong place, like down her underwear exact ly, on the second

time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the

impression that the first time, Respondent's hand ended up in the wrong

place on top of V.C.'s clothing, because V.C. made a point of saying the second

time his hand went under her underwear.

3 3 . Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through

it by sharing the "similar" incident that happened to her with a massage

therapist. Dr. Maguire said she told V.C. that her biggest regret was that s he

had done nothing about it. As a result of her experience, she urged V.C. to

report the incidents. Dr. Maguire said that V.C. was looking to her for advice,

asking how to go about report ing it. Dr. Maguire gave V.C. a couple of

suggestions, telling her s he should report the incidents to law enforcement

and the Department. 8

3 4 . V.C. testified that she also disclosed the August 28 incident to V.D., a

friend of her son's who was living in her house temporarily while between

leases. According to V.C., when sh e got home that day, V.D. saw her distress

and asked her what was wrong, so she told him about the incidents, and he

offered his sympathy and attempted to comfort her.

3 5 . V.D.'s testimony by deposition was offered in evidence by Petitioner to

corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed

that he found V.C. distressed one day and asked her what was wrong. He

said V.C. described a single incident in which her doctor touched her vagina

inappropriately. V.C. also told V.D. that a fter the inappropriate touching, the

8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that

Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not

recall even discussing the subject of reporting the incidents with Dr. Maguire.

doctor "made a comment to her about, like, having a hard time resisting her

and not being able to control himself around her. Something to that effect."

( Pet. Ex. 7, p. 15 - 16). V.D. later clarified that he did not reca ll the exact

wording used by V.C. to describe what the doctor had said to her, "but it was

something to the effect of that he had desired her for a while, or that he had a

hard time resisting her. Basically saying that Ð justifying what he Ð the

assault by say ing, I'm physically or sexually attracted to you, is the effect of

what he said to her." 9 (Pet. Ex. 7, p. 21 - 22).

3 6 . V.D. testified that V.C. asked him what she should do, and they

discussed reporting the incident to law enforcement. V.C. told him she

in tended to report it to the police, and later told him that she had reported it.

3 7 . V.C. did not report the incident(s) to the police or to the Department or

Board. She explained that she felt guilt and shame, and did not want to relive

the incidents as s he would have to in order to report it. She blamed the

incidents on intensification of "crying jags" that she had experienced before.

She also blamed the incidents for a return of insomnia, which she said she

had gotten under control.

3 8 . On October 12, 20 18, V.C. told her psychiatrist, Dr. McKinnon, about

the incidents during her regular appointment with him. His notes reflect

some inconsistencies in the details of the incidents. 10 Following her

disclosure, Dr. McKinnon 's notes reflect that he told V.C. he had to report the

9 Even though Petitio ner offered V.D.'s deposition testimony into evidence, Petitioner did not

ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C.

attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no

i nappropriate or unprofessional statements that day or any other day.

10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put

his hand under her leggings and panties on August 28, she immediately stopped the

examination and left the office. At the hearing, V.C. did not dispute whether the notes

accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the

discrepancy, suggesting the version in the notes was virtually the same as what happened

becau se she "stopped [Respondent's] hand from being there, and then left the office a couple

of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive.

The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney

who would not take her case. At the hearing, V.C. said that she did not recall telling

Dr. McKinnon that, but she did not deny that the statement was true.

incidents to the Florida Board of Medicine, and that she should report the

matter to law enforcement or another attorney to explore her legal rights.

3 9 . Dr. McKinnon's notes contradict V.C.'s testimony about the effect of

the incidents o n her insomnia and crying jags. As of October 12, 2018, V.C.

reported that , overall, the medications previously prescribed by

Dr. McKinnon for management of her depression and insomnia had been

helpful. In particular, V.C. reported that the dosage of one m edication, which

she "continues to take" twice a day, had effectively "reduced her crying

spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication

management of depression and insomnia since well before the incidents, and

the October 12, 2018, notes, addressing her positive progress since her

previous appointments (the most recent of which was August 3, 2018) , do not

support her testimony that these conditions had been under control before

the incidents or that they worsened because o f the incidents.

40 . After the October 12, 2018, visit, Dr. McKinnon reported what V.C.

had told him about the incidents to the Department, which began an

investigation. The Department also reported the incidents to the Sarasota

P olice D epartment which co nducted an investigation, but no charges

resulted.

4 1 . V.C. also told her long - time physical therapist, Ofer Nissan, about one

or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C.

said that she told him about the incident(s) because he had been treating her

for a long time and had always been appropriate. Mr. Nissan's deposition was

offered by Petitioner in lieu of live testimony, because Mr. Nissan had become

uncooperative after being subpoenaed to testify at the hearing and had

sto pped responding to calls by Petitioner's counsel.

4 2. Mr. Nissan testified that V.C. told him Respondent touched her

private area in an inappropriate way while he was working on her right inner

thigh. When asked if V.C. had used the phrase, "private area, " Mr. Nissan

responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked

whether V.C. said whether there was inappropriate touching or penetration,

Mr. Nissan responded: "She said penetration." 11 (Pet. Ex. 9, p. 25).

4 3 . Despite what Mr. Nissan said he was told by V.C., he did not report

the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot

of respect in this town. È I respect the doctor. I respect his reputation."

(Pet. Ex. 9, p. 20).

4 4 . V.C. acknowledged at the hearing that she has retained l awyers to

represent her, and they have prepared a complaint for damages against

Respondent. Although V.C. acknowledged "there is a money component," she

testified that that was not her priority; she just want s to hold him

accountabl e.

4 5 . V.C. told her friend, T.B., for whom she works, something very

different. T.B. described a conversation with V.C. in which she told him the

incident 12 had been reported to the police and asked him what he thought

would happen. T.B. told her that if it was true, Respondent would probably

end up in jail. V.C. responded that she would just rather have a monetary

settlement. At the hearing, T.B. said he found V.C.'s comment strange : "I

personally felt that that was a motivation beyond justice." (Tr. 123) .

4 6 . At the hearing, Petitioner presented the expert testimony of Anthony

Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then

Respondent had committed inappropriate touching of V.C.'s genitalia, an act

that was outside of the sc ope of practice of osteopathic medicine. At the same

time, he acknowledged that the examination and treatment of V.C. performed

by Respondent on July 31 and August 28, 2018, were required based on V.C.'s

presenting complaints, and were justified by the med ical records.

11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner

did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony

regarding what V.C. told him.

12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C.

called him one week before the hearing to tell him (for the first time) that there had been two

incidents, and also to tell him that she was filing a civil lawsuit against Respondent.

4 7 . Dr. Davis also offered his view that there was no sexual misconduct in

this case, either outside the standard of care or by not acting in accordance

with governing medical statutes and rules. He testified that Respondent did

not use the p atient/physician relationship to engage in sexual activity outside

the scope of practice.

4 8 . Respondent presented the expert testimony of Walter Ehrenfeuchter,

D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine.

But Dr. Ehrenfeucht er was also qualified in the additional area of osteopathic

manipulative treatment, a specialty area that is particularly germane here,

since Dr. Van Buskirk's practice has focused exclusively on osteopathic

manipulative treatment for the last 12 years.

4 9 . Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and

the allegations raised. He also reviewed deposition testimony of Dr. Davis,

V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly

conclusory opinions, by going int o compelling detail, in both his testimony

and illustrative exhibits, to explain the treatment techniques employed by

Respondent in treating V.C., the challenges working in delicate physical

areas to address V.C.'s specific complaints, and the related stan dards of care

implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully

supported his overall opinions that Respondent 's actions in examining and

providing osteopathic manipulative treatment to V.C. were appropriate and

within the scope of p ractice.

Ultimate findings of fact

50 . Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not

engage in or attempt to engage in sexual misconduct. He did not engage or

attempt to engage in verbal or physical sexual activity with V.C. He did not

induce or attempt to induce V.C. to engage in sexual activity. V.C.'s

testimony, if credited, went no further than to suggest passive momentary

resting of a palm or part of a palm on V.C.'s pubic area in the course of

providing osteopathic manipulative treatment to V.C.'s painful groin.

5 1 . For many reasons, though, V.C.'s testimony cannot be credited. Her

testimony lacked credibility, clarity, and consistency. The details she

described were confused or contrived in many respects. The testimony of

Petit ioner's other witnesses, offered for the purpose of demonstrating

consistency in V.C.'s statements from July 2018 through the hearing, instead

demonstrated glaring inconsistencies on material points. The best that could

be said about V.C.'s overall testimo ny is that V.C. may have been influenced

by what others told her, starting with Dr. Maguire sharing her "similar"

experience of realizing that she had been violated, such that V.C. built up in

her own mind the belief that she, too, was violated. Yet V.C.'s

embellishments, as described by the "corroborating witnesses," to V.D.

(inventing verbal come - on statements of a sexual nature) and to Ofer Nissan

(changing her allegation to inappropriate touching of her vulva and adding

penetration) suggest the possibil ity of a more purposeful nefarious intent to

spin a tale to try to capitalize financially.

5 2 . Respondent's testimony that he did not touch V.C. inappropriately was

more credible than V.C.'s testimony, and is credited.

5 3 . Dr. Ehrenfeuchter's expert opinio n that Respondent's examination and

treatment of V.C. was appropriate, supported by the medical records, and

within the standard of care and scope of appropriate osteopathic

manipulative treatment practice was well - supported, more persuasive than

Dr. Davis 's opinion (to the extent it was inconsistent), and is credited.

C ONCLUSIONS OF L AW

5 4 . DOAH has jurisdiction over the subject matter of this proceeding and

the parties thereto . §§ 120.569 and 120.57(1), F la. Stat. (20 20 ).

5 5 . By its Complaint, Petitioner charged Respondent with one count of

violating section 456.072(1)(v), which provides:

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in

subsection (2) may be taken:

* * *

(v) Engaging or attempting to en gage in sexual

misconduct as defined and prohibited in

s. 456.063(1).

5 6 . Section 456.063(1) defines "sexual misconduct" as follows:

Sexual misconduct in the practice of a health care

profession means violation of the professional

relationship through whi ch 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. Sexual misconduct in the practice

of a health care profession is prohibited.

5 7 . A proceeding to suspend or revoke a license, or to impose other

discipline upon a licensee, is penal in nature. State ex rel. Vining v. Fla. Real

Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears

the burden of proving the charges against Respondent by clear and

convincing evidence, as the parties acknowledged at the outset of the hearing.

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)).

5 8 . As stated by the Florida Supreme Court:

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

explicit and the witnesses must be lacking in

confusion as to the facts i n 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quot ing Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th 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. 1st DCA 1991).

5 9 . Penal statutes must be construed in terms of their literal meaning and

words used by the Legislature may not be expanded to broaden the

application of such statutes. Elmariah v. Dep't of Bus. & Prof'l Reg. , 574 So.

2d 164, 16 5 (Fla. 1st DCA 1990); Griffis v. Fish & Wildlife Conserv. Comm'n ,

57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep't of Fin. Servs. , 982 So.

2d 94, 100 (Fla. 1st DCA 2008) . " 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. Just . St ds. & Training Com m'n , 458 So. 2d 887, 888 (Fla.

5th DCA 1984) .

60 . The allegations of fact set forth in the Com plaint are the grounds upon

which this proceeding is predicated. Trevisani v. Dep't of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005) (administrative complaint charged physician with a

failure to create medical records; proof of a failure to retain medical re cords

cannot support a finding of guilt) ; see also Cottrill v. Dep't of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996). Furthermore, due process prohibits the

Department from taking disciplinary action against a licensee based on

matters not specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Delk v. Dep't of Prof'l Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

6 1 . Petitioner did not prove the allegations in the Complaint. V.C.'s

testimony, by itself, did not produce i n the mind of the undersigned a firm

belief or conviction, without hesitancy, as to the truth of the allegations

sought to be established. Instead, her testimony lacked clarity and

persuasiveness (such as by describing the scenario on July 31 , 2018, in ways

that are physically impossible). Further, the testimony offered by Petitioner

by witnesses who would corroborate V.C.'s statements to them after the

alleged incidents instead resulted in a number of significant inconsistencies.

Petitioner n ever confronted these glaring inconsistencies, and , instead,

ignored them and maintained that all of these witnesses "recalled having

similar conversations" about the alleged incidents with V.C. (Pet. PRO at 6,

¶ 18). V.D.'s description of his conversation with V.C., wherein V.C. said

Respondent told her he was unable to resist her after touching her vagina ,

was not similar to V.C.'s testimony or to the testimony of the other

"corroborating" witnesses. Ofer Nissan's testimony that V.C. told him

Respondent t ouched her vulva in an inappropriate way and there was

penetration was not similar to V.C.'s testimony or to V.D.'s account of his

conversation with V.C. Having put the testimony of these witnesses in the

record, Petitioner could not simply ignore these si gnificant conflicts. Left

unaddressed, they undermine Petitioner's attempt to prove that what V.C.

described at the hearing was true.

6 2 . Even if V.C.'s account at the hearing of what occurred on July 31,

2018, and August 28, 2018, were credited, Petitione r would not have proven

sexual misconduct as defined in section 456.063(1). V.C.'s account of the

incidents, if accepted, would fall well short of the mark necessary to prove

that Respondent engaged or attempted to engage in , or induced or attempted

to ind uce V.C. to engage in , "verbal or physical sexual activity" as required

for the charged violation.

6 3 . The Complaint does not allege any attempted verbal or physical sexual

activity, or any attempt to induce V.C. to engage in verbal or physical sexual

act ivity. The Complaint does not allege any actual verbal sexual activity.

V.C.'s account of the incidents at the hearing likewise did not claim that

Respondent attempted verbal or physical sexual activity, attempted to induce

V.C. to engage in verbal or phys ical sexual activity , or actually engaged in

verbal sexual activity . Instead, both the Complaint allegations and V.C.'s

testimony at hearing were that , on two occasions, Respondent's hand or part

of a hand rested inappropriately on V.C.'s genital area (whi ch V.C. clarified

at hearing was her pubic area, above her labia). For these to constitute a

violation of the statute charged, they would have to be considered actual

physical sexual activity. The descriptions by V.C. at the hearing fell short of

the mark of demonstrating actual physical sexual activity.

6 4 . That V.C.'s description of the alleged incidents would fall short of the

mark to prove the charged violation, if credited, makes the contradictory

testimony by V.D. and Mr. Nissan all the more troubling . T ouching V.C.'s

vagina, followed by th e sort of sexually - charged confession that V.C.

attributed to Respondent, according to V.D., would transform the tenor of the

alleged incidents to suggest sexual activity. But V.C. admitted at the hearing

there were no inappropriate statements by Respondent, on August 28, 2018,

or on any other day , and she did not claim that Respondent had touched her

vagina . V.D.'s testimony, left unexplained, instead undermines the

perception of V.C.'s allegations, raising questions about her own motives and

credibility, if she invented this sexually - charged come - on. So, too, touching of

V.C.'s vulva in an inappropriate way and committing penetration, as Ofer

Nissan said he was told by V.C., would transform the alleged incidents in to

ones involving actual physical sexual activity. But V.C.'s testimony at the

hearing was devoid of any suggestion that her vulva was touched, much less

that there was penetration. Mr. Nissan's contrary testimony, left

un explained, undermines the perception of V.C.'s allegations, raising

questions about her own motives and credibility.

6 5 . The clear, convincing, and credible evidence fails to establish that

Respondent violated section 456.072(1)(v). Instead, the evidence established

that Respondent did not e ngage in or attempt to engage in sexual

misconduct, as defined in section 456.063(1).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Osteopathic

Medicine, issue a fi nal order determining that Respondent, Richard Van

Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida

Statutes (2018), and dismissing the Administrative Complaint.

D ONE A ND E NTERED this 24th day of February , 2021 , in Tallahassee , Leon

County, Florida.

S

E LIZABETH W. M CARTHUR

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of Februar y , 2021 .

C OPIES F URNISHED :

Andrew Perrin, Esquire Kathryn Hood, Esquire

Department of Health Penningto n, P.A.

Prosecution Services Unit 215 South Monroe Street , Suite 200

4052 Bald Cypress Way, Bin C - 65 Tallahassee, Florida 32301

Tallahassee, Florida 32399

Stephanie Clark, Esquire

Corynn Colleen Alberto, Esquire Pennington, P.A.

Department of Health 215 South Monroe Street , Suite 200

Prosecution Services Unit Tallahassee, Florida 32301

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

Kama Monroe, JD, Exec utive Director Louise St. Laurent, Gen eral Counsel

Board of Osteopathic Medicine Department of Health

Department of Health 4052 Bald Cypres s Way, Bin C65

Prosecution Services Unit Tallahassee, Florida 32399

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3257

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.