Monthly Archives: February 2021

Physician Discipline Rejected by Judge

Perhaps the most difficult professional license proceedings are those that involve allegations of sexual misconduct by a health care practitioner. In these days of the #MeToo movement, most people, and perhaps most judges, are inclined to credit an alleged victim’s allegations of predatory behavior by a person in a position of trust and power. Faced with such an allegation in a formal Administrative Complaint by a state licensing Board, many practitioners feel overwhelmed and, in some instances, simply surrender a license to practice rather than face the potential humiliation, anguish, and uncertainty of a formal proceeding where they will be deposed, cross examined, and possibly found guilty of horrible professional misconduct. (Victims may also have these same reservations about reporting or proceeding with a complaint against a licensed professional.) A recent decision by a Florida Administrative Law Judge does give hope to the wrongly accused licensed professional that they can prevail in a fair review of the evidence.

In a Recommended Order published February 24, 2021 in the case of Department of Health, Board of Osteopathic Medicine vs. Richard Van Buskirk, D.O., Administrative Law Judge (ALJ) Elizabeth MacArthur cleared the accused physician of all charges after a meticulous review of the testimony and evidence. The ALJ noted the legal standard for a license revocation, suspension, or penalty case is clear and convincing evidence of the alleged misconduct. The ALJ cited to well established case law noting:

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)).

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 in 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) (quoting 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).

The ALJ further noted that 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, 165 (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. Stds. & Training Comm’n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984).

Applying these well-established legal principles to the evidence at hand, the ALJ concluded that there was no clear or convincing evidence of improper conduct. The ALJ noted that the doctor had been in practice for 30 years with no prior disciplinary proceeding brought against him. The Judge credited the physician’s testimony regarding 13 office visits over 9½ months with the patient. According to the doctor’s testimony, on each occasion he followed his standard practice including offering the patient a gown for the physical treatment, and a chaperone in the room if desired. The Judge found the doctor’s testimony to be credible and persuasive that there was no improper conduct. The alleged victim testified that on 11 of the 13 occasions there was no misconduct, but on two occasions the doctor inappropriately rested his hand on her pubic area during an upper thigh manipulation for a chronic pain condition. The ALJ noted inconsistencies in the alleged victim’s testimony, as well as in statements she made to other witnesses who were presented in deposition testimony, as purported corroboration of her account based on disclosure she made to these witnesses (including her own mental health provider). The ALJ also noted that the physical description of the allegations did not seem possible based on the physical position of the physician and the victim according to her testimony. Finally, the ALJ noted that at least one witness presented to corroborate her account noted that she mentioned she has retained a lawyer to sue for monetary damages, and that she would rather have a monetary judgement than have the doctor criminally prosecuted.

Ultimately, the ALJ based the decision on a thorough review of all the testimony and evidence. Applying the proper legal standard, she concluded that the evidence was not clear or convincing. Nobody could reasonably argue that a health care practitioner should be sanctioned whenever there is evidence of sexual misconduct with a patient. Practitioners have a clear legal, ethical, and moral duty to not engage in any such behavior, and the licensing Boards should strictly enforce standards in disciplinary proceedings when credible complaints are brought forth. However, the Recommended Order in this case affirms that the accused does have due process rights, however difficult it may be to go through a public process to reach a decision rendered by an impartial fact finder based on the evidence.