A Lake Worth family doctor accused of beating, choking and locking up a patient during a year-long sexual relationship should be allowed to continue practicing, a state hearing officer says.
Dr. David Simon should not lose his license over the affair, Administrative Law Judge John G. VanLaninghamin Tallahassee wrote late last month. While Simon should not have engaged in sex with a patient – Florida law prohibits that under any circumstances – he has not been in trouble before and deserves probation, VanLaninghamwrote.
That will likely not go down well with the Florida Board of Osteopathic Medicine, which in November rejected a proposed settlement between Simon and Department of Health investigators that called for probation and a reprimand. As Health News Florida reported at the time, the board ordered reluctant Department of Health prosecutors to go after Simon’s license.
“If there was ever a time that this board would revoke a license for sexual misconduct, this is it,” Dr. Ronald Burns of Winter Park said in November, when he was board chairman. “We cannot have an osteopathic physician behaving like this.”
During the November meeting, Dr. Joel Rose of Tampa called the case “the most egregious one I’ve ever seen,” adding that Simon showed “predatory behavior.” Rose is now chair of the osteopathic medicine board.
Van Laningham saw the case differently, after a hearing in which DOH brought in no witnesses to contradict Simon. The hearing officer said it appeared that the complaint was being pursued aggressively because of the type of sex involved, sadomasochism.
In his recommended order, issued July 30, he wrote that “all acts falling within the category of ‘sexual activity’ are equal, and none justifies a harsher penalty than another.”
Van Laningham’s recommended penalty in the Simon case will go before the osteopathic medical board at an upcoming meeting, and will stand in sharp contrast to another one involving sexual-misconduct allegations.
Taken together, the cases show just how unpredictable the outcome can be when medical discipline complaints go to the Division of Administrative Hearings.
The second case, that of Dr. Joseph M. Miller, was supposed to go before Van Laningham but was transferred to another hearing officer, Administrative Law Judge Edward T. Bauer. He said the obstetrician-gynecologist, who used to practice in Crystal River, should have his medical license revoked.
Miller was accusedof groping and attempting to have sexual intercourse with a patient who was nine months pregnant during a February 2012 pelvic exam. Records say the patient pushed him away, got dressed and left, then reported Miller to the Citrus County Sheriff’s Office.
He was arrested and charged with one count of sexual battery in July 2012; the Department of Health suspended his medical license at that time. Recently the criminal charges were dropped, according to the Citrus County Court Clerk’s office, but that decision is on appeal.
Like Simon, Miller had no prior offenses. But the hearing officer said that was “ substantially outweighed by the egregious nature of his conduct.” Bauer said Miller presented “a substantial danger to the public” and recommended that his license be revoked.
Opinions from hearing officers are not completely binding on professional boards, but they can’t be ignored, either. To give harsher discipline than the hearing officer recommends, a board must cite a valid reason. Otherwise a court can overturn the decision.
So how did these two sexual misconduct hearings come to such different outcomes? Witnesses and legal counsel both played roles.
In Simon’s case, DOH had just one young prosecutor who was up against an experienced defense attorney, David Spicer of Palm Beach Gardens. The state presented no witnesses against the doctor, while Spicer brought in two witnesses for Simon who had a powerful influence.
One, Helen Virginia Bush, is a licensed clinical social worker and marriage and family therapist. She counseled Simon, sent him to a course on “professional boundaries,” and testified that he was unlikely to attempt any future sexual relationship with a patient.
The other was Dr. Mary Scanlon, who like Simon is a family practitioner; the two share office space and staff. She said Simon’s patients “hold him in high regard” and that she does, too.
“That she has elected to continue practicing in the office she shares with Simon despite the public disclosure of Simon’s disgraceful dalliance” signaled “more persuasively than any testimony that his career is worth saving,” Van Laningham wrote.
By contrast, Miller had no attorney, while DOH had three lawyers working the case. DOH had four witnesses, including the patient who had filed the complaint.
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