94-006032 Board Of Medicine vs. Stephen Ward Welden Status: Closed Recommended Order on Thursday, September 28, 1995.

Summary: Prescription for medications establishes physician-patient relation. Sexual activity is prohibited.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6032

)

STEPHEN WARD WELDEN, M.D., )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its

designated Hearing Officer, William F. Quattlebaum, held a formal hearing in

this case on July 21, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Grover Freeman, Esquire

201 East Kennedy, Suite 500

Tampa, Florida 33602-5829

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Amended

Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 10, 1992, the Petitioner alleges

that the Respondent violated Section 458.329 and Section 458.331(1)(j) and (x),

Florida Statutes, by exercising influence within a patient-physician

relationship for purposes of engaging a patient in sexual activity. The

Respondent requested a formal administrative hearing. The matter was filed with

the Division of Administrative Hearings on October 26, 1994, which scheduled and

noticed the proceeding.

On March 14, 1995, the Petitioner filed a motion to Amend the

Administrative Complaint by dismissing Count One of the original complaint.

Count One sets forth the alleged violation of Section 458.331(1)(j), Florida

Statutes. Without objection, the motion was granted on March 27, 1995.

At the hearing, the Petitioner presented the testimony of two witnesses and

had exhibits numbered 2 and 4 admitted into evidence. The Respondent offered

the testimony of two witnesses, testified on his own behalf, and had exhibits

numbered 1-5 admitted into evidence. The Prehearing Stipulation filed by the

parties has been adopted as a Hearing Officer's exhibit.

A hearing transcript was filed. Both parties filed proposed recommended

orders. The proposed findings of fact are ruled upon in the Appendix which is

attached and hereby made a part of this Recommended Order.

The Petitioner has filed a Motion to Strike the Respondent's proposed order

as being untimely filed. Upon review of the motion and the response filed by

the Respondent, the motion is hereby denied.

FINDINGS OF FACT

1. The Petitioner is the state agency charged by statute with regulating

the practice of medicine in the State of Florida.

2. At all times material to this case, the Respondent has been a licensed

physician in the State of Florida, license #ME 0035994.

3. In August, 1987, the Respondent met with a married couple for treatment

of the wife's (patient) recurrent ovarian cysts and pain. The couple were

referred to the Respondent for the consultation by another physician. The

patient was hospitalized at the time of the consultation.

4. As part of the initial examination of the couple, the Respondent

conducted a routine infertility physical and history, including questions

related to sexual history and practices.

5. During the examination, the Respondent learned that the couple's sexual

activity was infrequent and that the marriage was troubled.

6. The Respondent determined that the cause of the medical problem was

related to a fertility medication prescribed by another physician.

7. At that time, and on subsequent occasions, the Respondent advised the

couple to obtain marital and sexual counseling.

8. The Respondent did not provide marital or sexual counseling to the

couple.

9. After the patient recovered from the ovarian cysts, she consulted with

the Respondent in regards to her ongoing fertility and ovulatory problems.

10. The Respondent began administering fertility medication to induce

ovulation. The medical treatment was eventually successful and the patient

became pregnant. The child was born in 1989.

11. At some point during the fertility treatment, the patient complained

to the Respondent of experiencing migraine headaches. The Respondent referred

the patient to a neurologist who prescribed narcotic pain relievers.

12. After the birth of the first child, the patient returned to the

Respondent for further fertility treatment (apparently in late 1989 or early

1990) in order to conceive a second child. Again, the treatment was successful

and the patient became pregnant.

13. The Respondent referred the pregnant patient back to her obstetrician

by letter dated April 23, 1990.

14. Beginning in mid-1990, the patient and her husband began to engage in

social activities with the Respondent. On occasion, the three had dinner, went

swimming with their children, and went to view a fireworks show.

15. The patient had been employed as a pharmaceutical representative, but

was interested in changing careers. She expressed an interest to the Respondent

in establishing a medical transcription business. The Respondent provided

typing work to the patient.

16. By April 23, 1990, the patient was typing letters for the Respondent.

The letter from the Respondent to the obstetrician closes, "[p]lease forgive the

typographical errors, as I am sure [patient] will be typing this letter."

17. The patient gave birth to the second child on October 26, 1990.

18. After the birth of the second child, the Respondent employed the

patient as a medical transcriptionist. She also worked for her obstetrician as

a transcriptionist.

19. Based on the suggestion in 1990 by the patient, the Respondent began

to employ the patient's husband as a certified public accountant.

20. Throughout the remainder of 1990, the Respondent continued to

socialize with the couple. The Respondent was aware that the couple's marriage

was troubled.

21. The continuing marital problems of the couple eventually resulted in

separation when the patient's husband moved from their home into an apartment.

The evidence fails to conclusively establish the date of the separation, but it

apparently occurred prior to April, 1991.

22. By April 1991, the patient and the Respondent continued to meet on a

social basis. The Respondent was divorced. The patient and her husband

remained separated. At times, the Respondent and the patient discussed their

marital experiences.

23. During this period, the Respondent and the patient expressed romantic

feelings for each other. They began to "date," and the Respondent paid to take

the patient to dinners and movies.

24. In April or May of 1991, and continuing thereafter for a period of

approximately three and a half years, the patient and the Respondent engaged in

consensual sexual activity.

25. It is critical for an obstetrician-gynecologist, as well as for a

specialist in reproductive endocrinology, to understand and respect the sexual

boundaries between physician and patient.

26. The sexual boundary between a patient and a reproductive

endocrinologist must be absolute. In order to receive appropriate medical

treatment, the patient is requested to reveal intimate details of her sexual

activities and the emotional nature of a marriage. The patient must be able to

completely trust the physician. The information is and must remain

confidential.

27. From the time of the Respondent's initial examination and history of

the patient, through the initiation of the sexual relationship, the Respondent

was aware of the marital and sexual problems of the patient and her husband.

28. The Respondent asserts that by the time the sexual relationship began,

the physician-patient relationship had been terminated by the letter of April

23, 1990.

29. Based on credited expert testimony, the evidence establishes that the

physician-patient relationship continued to exist at the time the sexual

activity began.

30. The evidence establishes that the referral of a pregnant patient back

to an obstetrician does not terminate the relationship with a fertility

specialist, who may again be called upon to render assistance in treatment of

continuing fertility problems.

31. The evidence also establishes that prescribing of narcotics

necessarily establishes a physician-patient relationship.

32. Subsequent to the letter of April 23, 1990, the Respondent wrote

prescriptions to refill narcotic pain medications which the patient had obtained

from her neurologist.

33. Although documentary evidence regarding the actual prescriptions is

deemed to lack reliability, both the Respondent and the patient acknowledged

that the prescriptions were written.

34. The Respondent wrote the refills after the patient, with continuing

migraine headaches, complained that she would have to see the prescribing

physician and pay for an office visit to get them refilled.

35. Although the Respondent claims to have reviewed an early report done

by the neurologist to whom he had referred the patient, there is no evidence

that the Respondent did a physical examination at the time he wrote the refill

prescription.

36. The evidence establishes that, because a physician can prescribe

narcotics, there is potential for abuse by a physician who may attempt to trade

drug prescriptions for sexual activity.

37. It is unethical for a physician to induce a patient into sexual

activity. Allowing an emotional relationship to begin and develop within the

physician-patient relationship constitutes an inducement of the patient into

sexual activity.

38. The Respondent failed to maintain sexual boundaries with his patient.

He allowed and encouraged an emotional and sexual relationship to develop, and

as such, used the physician-patient relationship to engage and induce the

patient into sexual activity.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

40. The burden of proof is on the Petitioner to establish the truthfulness

of the allegations of the Amended Administrative Complaint by clear and

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

burden has been met.

41. In relevant part, Section 458.331(1), Florida Statutes, provides as

follows:

The following acts shall constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

* * *

(x) Violating any provision of this chapter,

a rule of the board or department, or a lawful

order of the board or department previously

entered in a disciplinary hearing or failing

to comply with a lawfully ordered subpoena of

the department.

42. Section 458.329, Florida Statutes, provides as follows:

Sexual misconduct in the practice of medicine.--

The physician patient relationship is founded on

mutual trust. Sexual misconduct in the practice

of medicine means violation of the physician-

patient relationship through which the physician

uses said relationship to induce or attempt to

induce the patient to engage, or to engage or

attempt to engage the patient, in sexual activity

outside the scope of the practice or the scope of

generally accepted examination or treatment of

the patient. Sexual misconduct in the practice

of medicine is prohibited.

43. In this case, the evidence establishes that because the patient

consulted the Respondent about fertility problems, the Respondent had detailed

knowledge of the patient's sexual history and continuing marital difficulties.

The Respondent allowed and encouraged the development of a personal relationship

which resulted in intimate sexual activity between the Respondent and his

patient after her marriage foundered.

44. The Respondent asserts that by the time the sexual activity began, he

was no longer the patient's physician. The evidence establishes that the

physician-patient relationship continued to exist.

45. The Respondent asserts that because the sexual activity with the

patient was consensual, he can not be said to have "induced" the relationship.

The evidence establishes that allowing an emotional relationship to begin and

develop within the physician-patient relationship constitutes an inducement of

the patient into sexual activity.

46. Rule 59R-8, Florida Administrative Code, sets forth the disciplinary

guidelines of the Board of Medicine applicable to violations of Section 458.331,

Florida Statutes. In relevant part, Rule 59R-8.001, Florida Administrative

Code, provides as follows:

(1) Purpose. Pursuant to Section 2, Chapter

86-90, Laws of Florida, the Board provides within

this rule disciplinary guidelines which shall be

imposed upon applicants or licensees whom it

regulates under Chapter 458, F. S. The purpose

of this rule is to notify applicants and licensees

of the ranges of penalties which will routinely be

imposed unless the board finds it necessary to

deviate from the guidelines fro the stated reasons

given within this rule. The range of penalties

provided below are based upon a single count

violation of each provision listed; multiple

counts of the violated provisions or a combination

of violations may result in a higher penalty than

that for a single, isolated violation. Each range

includes the lowest and highest penalty and all

penalties falling between. The purposes of the

imposition of discipline are to punish the

applicants or licensees for violations and to

deter them from future violations; to offer

opportunities for rehabilitation, when appropriate;

and to deter other applicants or licensees from

violations.

47. Penalties for violation of disciplinary statutes are established by

guidelines set forth at Rule 59R-8.001(2), Florida Administrative Code. The

penalty for violation of Section 458.331(1)(x) ranges from a reprimand and

probation to revocation, and an administrative fine up to $5,000.

RECOMMENDATION

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

RECOMMENDED:

That the Agency for Health Care Administration enter a Final Order

determining that Stephen Ward Weldon has violated Sections 458.329 and

458.331(1)(x), Florida Statutes, reprimanding the Respondent and placing the

Respondent on probation for a period of two years.

DONE and RECOMMENDED this 28th day of September, 1995, in Tallahassee,

Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6032

To comply with the requirements of Section 120.59(2), Florida Statutes, the

following constitute rulings on proposed findings of facts submitted by the

parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and

incorporated in the Recommended Order except as follows:

6. Rejected, unnecessary.

19-20. Rejected, not established by clear and convincing evidence.

22. Rejected, cumulative.

29. Rejected, cumulative.

Respondent

The Respondent's proposed findings of fact frequently refer to an alleged

termination of the physician-patient relationship. Such references are rejected

as contrary to the greater weight of credible and persuasive evidence.

Otherwise, the proposed findings are accepted as modified and incorporated in

the Recommended Order except as follows:

1. Rejected. The prehearing stipulation filed by the parties does not

address certification.

9. Rejected as to patient's desire for her marriage to continue, and as to

the assertion that her marital difficulty was "unrelated" to the eventual

development of her relationship with the Respondent, irrelevant.

11. Rejected, irrelevant.

12. Rejected, recitation of testimony is not a finding of fact.

16-17. Rejected, recitation of testimony is not a finding of fact.

18-20. Rejected, irrelevant.

DOAH CASE NO 94-6032

COPIES FURNISHED:

Douglas M. Cook, Director

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Harold D. Lewis, Esquire

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303-4131

Joseph S. Garwood, Esquire

Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Grover Freeman, Esquire

201 East Kennedy, Suite 500

Tampa, Florida 33602-5829

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the Final

Order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the Final Order in this case.