21-000625PL Department Of Health, Board Of Osteopathic Medicine vs. Eric Lang, D.O. Status: Closed Recommended Order on Tuesday, August 31, 2021.

Summary: Clear and convincing evidence proved that Respondent kissed a patient in violation of section 459.015(1)(l), Florida Statutes.

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 ,

vs. Case No. 2 1 - 0625 PL

E RIC L ANG , D.O.,

Respondent .

/

R ECOMMENDED O RDER

An administrative hearing was conducted in this case on May 26 , 202 1 ,

via Zoom, before James H. Peterson , III, Administrative Law Judge with the

Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: Gerald C. Henley , Esquire

Kristen M. Summers, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Chanel Mosley, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

315 East Robinson Street , Suite 550

Orlando, Florida 32801

S TATEMENT OF T HE I SSUE

Whether Respondent should be subject to discipline against his license to

practice osteopathic medicine because of his attempt to en gage a patient in

sexual activity.

P RELIMINARY S TATEMENT

On December 13 , 2020, the Department of Health (Petitioner or

Department) filed an administrative complaint (Administrative Complaint)

alleging that Respondent violated section 459.015(1)(l) , Flori da Statutes , 1 by

exercising influence within the patient - physician relationship for the

purposes of engaging or attempting to engage a patient in sexual activity by

hugging and kissing the patient . Upon filing of the Administrative

Complaint, an E mergency S uspension O rder was entered, but was lifted with

the condition that Respondent can continue to practice provided a chaperone

is present when Respondent sees female patients. Respondent timely filed an

Election of Rights disputing the allegations of the Ad ministrative Complaint

and requesting a hearing pursuant to section s 120.569(2)(a) and 120.57(1) ,

Florida Statutes . The case was referred to DOAH on February 16, 2021 .

Th is case was originally scheduled for April 28, 2021, but, upon the

granting of the pa rtiesÔ Joint Motion to Continue Final Hearing , was

rescheduled and held on May 26, 2021. At the beginning of the final hearing,

the undersigned denied the partiesÔ pending motions in limine, without

prejudice to raise the same evidentiary objections during the hearing. A t the

final hearing , Petitioner presented the testimony of P atient S.K. , who

allegedly was hugged and kissed by Respondent ; and P atient S.K.Ôs husband,

R.K. ; as well as the testimony of L icensed M ental H ealth C ounselor Kelly

Freund , pr esented through her deposition received into evidence as

PetitionerÔs Exhibit P - 6. Petitioner also presented two other exhibits received

into evidence as PetitionerÔs Exhibits P - 4 and P - 5. Respondent testified on his

own behalf , presented the testimony of his physicianÔs assistant, Shelley

Williams, P.A., and submitted f our multiple - page documents received into

1 Unless otherwise indicated, all references to the Florida Statutes and Florida

Administrative Code are to the versions in effect during 2019, the relevant time period in

this case.

evidence as RespondentÔs Exhibits R - 1 and R - 2, with Bates stamp numbers ,

1.001 - 1.002, 1.014 - 1.019, 1.073 - 1.076, and 2.006 - 2.008 . In addition, during

Respondent Ôs cross - examination , a portion of an investigative report prepared

by PetitionerÔs investigator purporting to contain statements from

Respondent (Reported Statements), and a police report dated September 19,

2019 , c ontaining statements attributed to Respondent (Police Report about

Respondent ) , were received into evidence. As these two exhibits were not

previously filed by Petitioner, Petitioner was given until June 5, 2021, to file

the Reported Statements and the Police Report about Respondent with

DOAH. T hey were timely filed on June 2, 2021 , as Joint Exhibit 1 and

PetitionerÔs Exhibit 7.

The proceedings were recorded and a transcript was ordered. The parties

were given 3 0 days after the filing of the t ranscript within which to file their

respective proposed recommended order s . The one - volume T ranscript of the

proceedings was filed with DOAH on August 7 , 2021. Thereafter, the parties

timely filed their respective Proposed Recommended Order s , both of which

ha ve been considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. Respondent is licensed to practice as an osteopathic physician within

the State of Florida, license number OS 8946.

2. At all times material to the Administrative Complaint, Respondent

worked at RespondentÔs medical practice, located at 1600 West Eau Gallie

Boulevard, Suite 100, Melbourne, Florida , and had a patient - physician

relationship with Patient S.K.

3. Petitioner is the state agency charged wit h regulating the practice of

osteopathic medicine, pursuant to section 20.34, Florida Statutes; chapter

456, Florida Statutes; and chapter 459.

4. Section 459.015(1)(l) authorizes discipline against an osteopathic

physician for exercising influence within a patient - physician relationship for

the 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.

5. The Administrative Complaint alleges that during her office visit on

August 2 1 , 2019, Respondent hugged Patient S.K. , and kissed Patient S.K. on

the lips during her visit to RespondentÔs medical practice on September 4,

2019. If true, such conduct by Respondent would constitute sexual activity.

6. If Respondent kissed Patient S.K. on the lips, as alleged in the

Administrative Complaint, such conduct would be outside the scope of a

medical examination and a violation of section 459.015(1)(l).

7. On August 21, 2019, Patient S.K. pr esented to RespondentÔs medical

practice with complaints of leg and back pain. After arriving, Patient S.K.

was seated in the waiting room and then a medical assistant brought Patient

S.K. to the examination room.

8. At some point, after entering the exami nation room, Patient S.K.

changed into a hospital gown.

9. Inside the exam room were two chairs and an exam table . P atient S.K.

sat in one of the chairs while the medical assistant recorded her vital signs

and then left the room .

10. After the medical assistant had left, Respondent entered th e exam

room, closed the door behind him, and spoke with Patient S.K. about her

health concerns. Patient S.K. then sat on the exam table and Respondent

examined her leg and thigh.

11. Patient S.K. w as in a hospital gown during the physical examination.

Respondent discussed some of the concerns he had regarding a lump that he

located during the examination. After discussing the findings of the

examination with Patient S.K., Respondent exited the exam room and

allowed Patient S.K. to redress.

12. Respondent returned a short time later and told Patient S.K. that he

wanted her to get additional tests on her back and spine.

13. As the discussion and examination concluded, Respondent asked

Patient S.K., ÑC an I have a hug?Ò Patient S.K. felt that this was an awkward

and unusual request. However, she complied and gave Respondent a hug.

14. Respondent wrapped both arms around Patient S.K. in an embrace.

15. After Respondent hugged Patient S.K., he opened the d oor to the exam

room and they both exited.

16. Patient S.K. walked to the reception area and made a follow - up

appointment to go over the results of her upcoming test ing, the results of

which were of special importance to her because of her history with cancer

and fear of having a blood clot.

17. On or about September 4, 2019, Patient S.K. presented to

RespondentÔs medical practice for her follow - up appointment with

Respondent. Patient S.K.Ôs husband drove her to her appointment that day .

18. Upon their a rrival, Patient S.K. checked in at the front desk and

Patient S.K.Ôs husband waited in the lobby.

19. A medical assistant escorted Patient S.K. to the exam room where

they took Patient S.K.Ôs vitals. The medical assistant then left the room.

20. Respondent entered the room and closed the door. Patient S.K. sat on

the exam table and Respondent stood next to her. Respondent and Patient

S.K. were alone.

21. Respondent and Patient S.K. discussed the results of her test. The

tests results were negative for both cancer and a blood clot. This news

relieved Patient S.K . Respondent recommended that Patient S.K. schedule a

future appointment.

22. As the discussion concluded, Patient S.K. stood up to leave and began

to make her way toward the door. Respondent stood between Patient S.K.

and the door.

23. As Patient S.K. went toward the door, Respondent leaned forward

towards Patient S.K. P atient S.K. believed that Respondent wa s attempting

to hug her again.

24. As Patient S.K. readied herself to receive another hug , Respondent

leaned down and forward toward Patient S.K. , and then, without warning,

and without asking for permission or indicating his intentions, Respondent

kissed Patient S.K. hard on her lips.

25. Patient S.K. was shocked by RespondentÔs actions and did not know

what to do .

26. Patient S.K. did not say anything to Respondent , exited the exam

room, and she went to the front desk. Respondent followed her.

27. In th e moment, Patient S.K. was nervous, upset, still in shock, and

found it difficult to process the incident .

28. Patient S.K. scheduled her follow - up appointment because she felt

pressured by RespondentÔs presence nearby. Patient S.K. , however, because

of RespondentÔs actions, did not intend to go for her follow - up appointment .

29. Patient S.K. did not report the incident to the receptionist when

making the follow - up appointment because she was still in a state of shock

and did not know whether RespondentÔs receptionist would act in her best

interests. Patient S.K. simply wanted to quickly exit the facility.

30. Patient S.K.Ôs husband accompanied her as she left. Patient S.K. felt

fearful and ashamed. While Patient S.K.Ôs husband drove them both home,

Patie nt S.K. did not tell her husband that Respondent had kissed her because

she was afraid how her husband might react .

31. According to her husband, d uring the car ride home, Patient S.K.

appeared to be Ña little bothered.Ò

32. The next day, Patient S.K. told her husband that Respondent hugged

her at the conclusion of her August 21, 2019, appointment, and kissed her on

her mouth at the conclusion of her September 4, 2019, appointment.

33. Patient S.K.Ôs revelation upset her husband and he asked her how she

was feeling. She told him that she was shocked and that she didnÔt know

what to do at the time but that she recognized that something was not right

about what happened.

34. A few days later, Patient S.K. contacted law enforcement to report the

incident. Patient S.K. also placed a telephone call to her mental health

counselor, Kelly Freund . Patient S.K. had been receiving counseling from

Ms. Freund since January of 2019. Patient S.K. trusted Ms. Freund and felt

comfortable sharing difficult, personal matte rs with her. Patient S.K. was

very upset during her phone call.

35. On September 9, 2019, Patient S.K. met with Ms. Freund and told

Ms. Freund that during her second visit with Respondent, Respondent kissed

her on the lips as she left the examination room . Patient S.K. was tearful at

times during her September 9, 2019, session with Ms. Freund.

36. Ms. Freund helped Patient S.K. process the event and advised her that

she (Patient S.K.) was not to blame for the incident, and that RespondentÔs

reported behavior was inappropriate and unprofessional. Ms. Freund

provided Patient S.K. with the DepartmentÔ s phone number in case she

wanted to file a complaint against Respondent.

37. Thereafter, Patient S.K. reported Respondent to the Department.

38. On September 10, 2019, Patient S.K. met with an officer with the

Melbourne Police Department. Patient S.K. tol d the officer that Respondent

hugged her during her first visit and kissed her during her second visit with

him.

39. Patient S.K. met with Ms. Freund again on September 17, 2019.

Patient S.K. reported that she was still having a hard time sleeping and was

anxious about what would happen following her reports to the Department

and to law enforcement.

40. At a later meeting with Ms. Freund on October 4, 2019 , Patient S.K .

reported that she was still having some Ñups and downsÒ emotionally because

of the incident with Respondent and was fearful that she may see

Respondent in the community.

41. During the final hearing, Respondent provided evidence that Patient

S.K. was forgetful, citing the fact that Patient S.K. forgot her binder at her

appointment , forgo t to list all of her medications on an intake sheet , and did

not remember all of the details of her visits to RespondentÔs practice.

42. While there is evidence that Patient S.K. ha s been treated in the past

for memory problems, the evidence does not indic ate that Patient S.K. had

false memories or imagined the occasion s when Respondent hugged and

kissed her.

43. Although Patient S.K. may not have perfect memory, her testimony

was clear, concise, and credited regarding the fact that Respondent hugged

her on her first visit and gave her an unsolicited kiss on the mouth during

her second visit . Patient S.K.Ôs observations and reports were corroborated by

other witnesses .

44. In contrast, d uring his testimony, Respondent denied hugging Patient

S.K. or kissing h er on the lips or cheek.

45. Respondent further testified that he hugs patients in extremely

limited circumstances. Respondent explained that he occasionally accepts

hugs from elderly patients. Respondent also explained that he sometimes

hug s patients to console them after they have received bad news.

46. Despite testifying that he did not hug Patient S.K . , Respondent

previously admitted to law enforcement and a Department investigator that

he hugged Patient S.K. He further admitted to the De partment investigator

that he kissed Patient S.K. on the cheek.

47. The inconsistencies between his testimony at the final hearing and his

statements to law enforcement and the Department investigator discredit

RespondentÔs assertions that he did not hug or kiss Patient S.K .

48. While Patient S.K. has experience d forgetfulness , her testimony

provide d clear and convincing evidence of the allegations against Respondent.

49. RespondentÔs testimony denying the hug and the kiss is not credited.

C ONCLUSIONS OF L AW

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

the parties pursuant to sections 120.569 and 120.57(1).

51. Petitioner, as the party asserting the affirmative in this proceeding,

has the burden of proof. See , e.g., Balino v. DepÔt of H R S , 348 So. 2d 349

(Fla. 1st DCA 1977). Because Petitioner seeks to suspend, revoke, or impose

other discipline upon a license , this proceeding is penal in nature , see State ex

rel. Vining v. Fla. Real Estate CommÔn , 281 So. 2d 4 87, 491 (Fla. 1973) , and

must prove the allegations in the Complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

52. Clear and convincing evidence:

[r]equires that 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 confusion as to the facts in issue. The

evidence mus t 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), quoting Slomowitz v. Walker ,

429 So. 797, 800 (Fla. 4th DCA 1983).

53. Disciplinary statutes and rules Ñmust be construed strictly, in favor of

the one against whom the penalty would be imposed.Ò Munch v. DepÔt of Prof Ôl

Reg . , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) .

54. I n determining whether Petitioner has met its burden of proof, the

evidence presented should be evaluated considering the specific factual

allegations in the Administrative Complaint. Disciplinary actions against

licensees may only be based upon those offen ses specifically alleged in the

charging document. See, e.g., Trevisani v. Dep't of Health , 908 So. 2d 1108

(Fla. 1st DCA 2005). The Administrative Complaint charged Respondent with

violating s ection 459.015(1)(l), which provides , in pertinent part:

(1) The following acts constitute grounds for denial

of a license or disciplinary action, as specified in s.

456.072(2):

* * *

(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.

55. T he Department proved the allegations in the Administrative

Complaint by clear and convincing evidence.

56. In addition to the clear and convincing evidence proving that

Respondent kissed Patient S.K. on the lips, the parties stipulated that if

Respondent kissed Patient S.K. on the lips as alleged in the Administrative

Complaint, such conduct would constitute sexual activi ty.

57. Consistent with the evidence and the partiesÔ stipulation, Petitioner

established by clear and convincing evidence that Respondent engaged and

attempted to engage Patient S.K. in sexual activity by kissing Patient S.K.

58. Consistent with that conc lusion, it is further concluded that

Respondent used the patient - physician relationship for the purpose of

engaging and attempting to engage Patient S.K. in sexual activity.

59. Penalties in a licensure discipline case may not exceed those in effect

at the time a violation was committed. Willner v. DepÔt of Prof Ôl Reg. , 563 S o.

2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

60. Section 456.079 requires the Board of Osteopathic Medicine to adopt

disciplinary guidelines for specific offenses. Penalties imposed must be

consistent with any disciplinary guidelines prescribed by rule. See Parrot

Heads, Inc. v. DepÔt of Bus. & Pro f Ôl Re g . , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

61. The Board of Osteopathic Medicine has adopted Florida

Administrative Code Rule 64B15 - 19.002(14), which provides that the

discipline for a first - time violation of section 459.015(1)(l) should be probation

and a $10,000 fine at minimum and denial of licensur e or revocation and a

$10,000 fine at maximum.

62. Section 456.072(4) provides that in addition to any other discipline

imposed for violation of a practice act, the B oard shall assess costs related to

the investigation and prosecution of the case.

R ECOMMENDATION

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

R ECOMMENDED that the Board of Osteopathic Medicine enter a final order

finding that Eric Lang, D.O., engaged and attempted to engage Patient S.K.

in sexual activity, which is punishable under section 459.015(1)(l). Because

this is RespondentÔs first such offense, it is further R ECOMMENDED that

Respondent be placed on probation for two years subject to such reasonable

terms and conditions as the B oard deems appropriate, incl uding continuation

of the requirement of a chaperone for female patients, that an administrative

fine of $10,000 be imposed , and that Respondent pay any costs of

investigation and prosecution .

D ONE A ND E NTERED this 31st day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

J AMES H. P ETERSON , II I

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 31st day of August , 2021.

C OPIES F URNISHED :

Chanel Mosley, Esquire Gerald C. Henley, Esquire

Marshall, Dennehey, Warner, Prosecution Services Unit

Coleman & Goggin Department of Health

315 East Robinson Street , Suite 550 4052 Bald Cypress Way , Bin C - 65

Orlando, Florida 32801 Tallahassee, Florida 32399

Kristen M. Summers, Esquire Louise St. Laurent, Gen eral Counsel

Prosecution Services Unit Department of Health

Department of Health 4052 Bald Cypress Way, Bin C - 65

4052 Bald Cypress Way, Bin C - 65 Tallahassee, F lorida 32399 - 3265

Tallahassee, Florida 32399

Kama Monroe , JD, Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, F lorida 32399 - 3252

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.