         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1571
                 _____________________________

OSAKATUKEI O. OMULEPU, M.D.,

    Appellant,

    v.

DEPARTMENT OF HEALTH, BOARD
OF MEDICINE,

    Appellee.
                 _____________________________


On appeal from the Department of Health, Board of Medicine.
Magdalena Averhoff, Chair.

                         June 22, 2018


OSTERHAUS, J.

     Dr. Osakatukei Omulepu appeals a final order of the Board of
Medicine revoking his license to practice medicine. Dr. Omulepu
argues that the decision violated his Fifth Amendment rights by
incorporating an adverse inference against him based on his
decision to remain silent at his formal hearing in response to
evidence of medical malpractice. He argues additionally that the
administrative complaint failed to properly charge him and that
the evidence did not support the charges filed by the Department
of Health. We disagree with these arguments and affirm.

                               I.
    In 2016, the Department filed an administrative complaint
against Dr. Omulepu seeking disciplinary action against his
medical license. The Department alleged in a nine-count complaint
that Dr. Omulepu violated § 458.331(1), Florida Statutes (2014).
According to the allegations, during a three-day period in May
2015, four of Dr. Omulepu’s liposuction patients experienced
severe post-surgery complications requiring hospitalization. The
Department asserted that in all four cases, Dr. Omulepu deviated
from the standard of care by using an improper concentration of
epinephrine in a surgical solution that is used to reduce bleeding
and failing to maintain accurate medical records of the
concentration of epinephrine. See § 458.331(1)(m) & (t), Fla. Stat.
It also alleged medical malpractice against Dr. Omulepu for
puncturing the internal organs of two of the patients. See
§ 458.331(1)(t), Fla. Stat.

     The complaint led to a formal hearing before an
administrative law judge in October 2016. After the hearing, the
ALJ issued recommended findings of fact and conclusions of law
that Dr. Omulepu committed medical malpractice and violated the
medical records law. Specifically, the ALJ found that Dr. Omulepu
committed medical malpractice by puncturing the internal organs
of two patients by an “improper angling of the cannula during the
procedures.” In reaching this conclusion, the ALJ relied partly
upon an adverse evidentiary inference against Dr. Omulepu
because he declined to testify or explain how the organ punctures
occurred. In addition, the ALJ found in Dr. Omulepu’s favor as to
the charges of using an improper concentration of epinephrine to
control bleeding in four patients, but found that he failed to create
and keep medical records accurately reflecting the concentration
of epinephrine given to them. The ALJ recommended that Dr.
Omulepu be disciplined with a fine, probation, and costs.

    The Board of Medicine then took up the recommended order,
approving and incorporating almost all of it into its Final Order.
The Board rejected, however, the discipline recommended by the
ALJ. Due to the severity of the injuries to Dr. Omulepu’s patients
within the span of a single day, it decided to revoke his license to
practice medicine. Dr. Omulepu timely appealed.



                                 2
                                 II.

                                 A.

     Dr. Omulepu contends first on appeal that the Board erred by
accepting the ALJ’s adverse inference because he remained silent
about the medical malpractice charges at his formal hearing. He
asserts that this adverse inference violated his right not to
incriminate himself under the Fifth Amendment to the United
States Constitution. We disagree.

     The Fifth Amendment states that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. This privilege may be asserted in
proceedings to protect “against any disclosures which the witness
reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.” Kastigar v.
United States, 406 U.S. 441, 445 (1972). In the criminal context,
the defendant’s silence may not be considered as evidence of guilt.
Marston v. State, 136 So. 3d 563, 569 (Fla. 2014) (quoting Griffin
v. California, 380 U.S. 609, 615 (1965)).

     The Florida Supreme Court has recognized the Fifth
Amendment right against self-incrimination to apply in the
context of professional license revocation cases because they are
“penal” in nature. State ex rel. Vining v. Fla. Real Estate Comm’n.,
281 So. 2d 487, 491 (Fla. 1973). Agreeing that Vining applies here,
the Department asserts that the scope of the Fifth Amendment’s
protection is nevertheless circumscribed in civil cases like this one.
It argues that, unlike the criminal context, the Fifth Amendment
protection in civil cases allows fact-finders to consider a
defendant’s silence as evidence of guilt. The Department’s
argument is backed by the opinion of the United States Supreme
Court in Baxter v. Palmigiano that “the Fifth Amendment does not
forbid adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered against
them.” 425 U.S. 308, 318 (1976). Various federal courts have noted
that Baxter applies “forcefully in medical discipline cases.” Arthurs
v. Stern, 560 F.2d 477, 478 (1st Cir. 1977) (agreeing with Baxter in
a medical disciplinary proceeding that “the trier of fact [may] treat
                                  3
silence as evidence of guilt”); see also MacKay v. Drug Enf’t
Admin., 664 F.3d 808, 820 (10th Cir. 2011) (citing Baxter and
affirming the revocation of a medical doctor’s registration to
dispense controlled substances). Florida cases also echo the rule
from Baxter. See, e.g., Vasquez v. State, 777 So. 2d 1200, 1203 (Fla.
3d DCA 2001); Atlas v. Atlas, 708 So. 2d 296, 299 (Fla. 4th DCA
1998). The Florida Supreme Court in Boedy v. Department of
Professional Regulation, 463 So. 2d 215, 218 (Fla. 1985) for
example, found it constitutionally permissible to deny authority to
practice medicine “to a physician who asserts the privilege against
self-incrimination if his claim has prevented full assessment of his
fitness and competency to practice.” The Boedy opinion noted that

    [w]hen a conflict arises between the right of a physician
    to pursue the medical profession and the right of the
    sovereignty to protect its citizenry, it follows that the
    rights of the physician must yield to the power of the state
    to prescribe reasonable rules and regulations which will
    protect the people from incompetent and unfit
    practitioners.

Id. at 217; cf., Borrego v. Agency for Health Care Admin., 675 So.
2d 666, 668 (Fla. 1st DCA 1996) (affirming the revocation of a
medical license against a Fifth Amendment double jeopardy claim
because the sanction was “remedial rather than punitive,” and
noting that a medical license “is . . . a privilege granted by the
sovereign, which may be withdrawn to ‘preserve the public health,
morals, comfort, safety and the good order of society’”) (quoting
State ex rel. Munch v. Davis, 196 So. 491, 493-94 (Fla. 1940)).

     In this case, the Department presented competent,
substantial evidence that Dr. Omulepu committed malpractice by
puncturing the organs of two patients during their cosmetic
surgery procedures. In the face of this evidence, Dr. Omulepu
exercised his Fifth Amendment right to remain silent. He wasn’t
forced to waive this right. In view of his silence, the ALJ applied
an adverse inference, citing Baxter. The ALJ and Final Order did
not, however, as a “consequence of [Dr. Omulepu’s] silence
automatically [find him] guilty of the infraction with which he has
been charged.” Baxter, 425 U.S. at 317. Rather, the adverse
inference combined with other probative evidence that advanced

                                 4
the Department’s case—expert testimony identifying the improper
angling of the cannula, multiple punctures of patient organs, and
Dr. Omulepu’s admission to a patient’s mother that he’d “messed
up” with a new cannula—supported the Board’s ultimate decision.
Under these circumstances, the adverse inference drawn by the
ALJ, and accepted by the Board’s Final Order, did not violate Dr.
Omulepu’s Fifth Amendment rights.

                                  B.

     We likewise affirm with respect to Dr. Omulepu’s other claims
involving the sufficiency of the evidence and alleged disparities
between the administrative complaint and evidence deduced at the
hearing. We recognize that a physician may not be “disciplined for
an offense not charged in the complaint.” Trevisani v. Dep’t of
Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); Ghani v. Dep’t
of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998). An administrative
complaint must “afford ‘reasonable notice to the licensee of facts or
conduct which warrant’ disciplinary action.” Cottrill v. Dep’t of
Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (quoting
§ 120.60(5), Fla. Stat.). Here, contrary to Dr. Omulepu’s
assertions, the administrative complaint did not fail to notice the
charges against him. The violations found by the Board—medical
malpractice in puncturing the internal organs of patients (see
counts I and II of the Second Amended Complaint), and failing to
create or maintain accurate records regarding the concentration of
epinephrine used (see counts VI through IX)—were consistent with
the allegations, which also were proven with competent,
substantial evidence.

                                 III.

         For these reasons, we affirm the Board of Medicine’s final
order.

LEWIS, J., concurs; MAKAR, J., concurs with opinion.




                                  5
                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


MAKAR, J., concurring.

    Today’s decision holds for the first time that a physician’s
exercise of his constitutional right against self-incrimination
permits an adverse inference to be drawn against him in an
administrative disciplinary action based on his failure to use
reasonable care in treating patients. Guidance is long overdue on
this topic. The practice has been to permit administrative law
judges to draw adverse inferences from a physician’s silence, but
when and how that is done is filled with nuance, qualifications,
and unanswered questions. See generally Matthew C.
Lucas, Balance of Silence: Weighing the Right to Remain Silent
Against the Right of Access to Florida Civil Courts, 22 U. FLA. J.L.
& PUB. POL’Y 1 (2011) (overview of three important issues that
arise when the Fifth Amendment privilege is invoked in civil
proceedings: “(i) whether to stay the civil lawsuit prior to the
completion of parallel criminal proceedings; (ii) how to weigh
discovery disputes and access to information against a party’s
Fifth Amendment privilege; and (iii) what substantive effect, if
any, a litigant’s refusal to testify has on the outcome of the civil
proceedings”).

     The “constitutional struggle” between a litigant’s right to
remain silent and society’s interest in adjudicating a civil dispute,
as Judge Lucas framed it in his article, id. at 23-24, arises “in even
more pronounced ways” as a civil case progresses. Two of the
leading supreme court cases underlying today’s decision reflect
that struggle: Boedy v. Department of Professional Regulation, 463
So. 2d 215 (Fla. 1985) and State ex rel. Vining v. Florida Real
Estate Commission, 281 So. 2d 487 (Fla. 1973). Neither arose in
the context of medical negligence, but both provide helpful
parameters for future physician disciplinary cases.


                                  6
     Boedy involved a physician, but his Fifth Amendment claim
was a right to refuse to submit to any mental and physical
examinations. At issue was his fitness to practice generally, rather
than his exercise of care as to patients. In this context, our
supreme court held that “it is constitutionally permissible to deny
authority to practice medicine to a physician who asserts the
privilege against self-incrimination if his claim has prevented full
assessment of his fitness and competency to practice.” Boedy, 463
So. 2d at 218. The court reasoned that although the “Fifth
Amendment privilege against self-incrimination protects the
accused from being compelled to testify against himself[,] [it] does
not extend to the exclusion of evidence of his physical or mental
condition when such evidence is otherwise admissible, even when
the evidence is obtained by compulsion.” Id. at 217. The reasons
why the privilege didn’t apply were two-fold: the physician’s
competence was at issue, not his guilt or innocence, and a statute
explicitly protected the physician’s interest against compelled
testimony providing that “neither the testimony received from a
physician, nor the orders subsequently entered on the basis of that
testimony may be used against the physician in any other
administrative, civil or criminal proceeding.” Id. at 218.

     Unlike Dr. Boedy, Dr. Omulepu was not required to give up
his testimonial privilege in this disciplinary proceeding. Instead,
he exercised that right, the question presented being the
evidentiary value of his silence as to his provision of medical care.
On this point, Boedy signaled that a tradeoff exists in physician
discipline cases between the exercise of the privilege and the
retention of the “benefits of the status of being a licensed
physician.” Id. In Boedy, the balance was struck to compel the
mental and physical examinations of the physician but protect
against their use in any legal proceedings thereafter. The balance
here, in contrast, is not to compel testimony but to allow an
adverse inference from the decision to remain silent, which raises
potential constitutional implications such as those discussed in
Vining, next discussed.

    In Vining, the supreme court held that a statute, which
compelled a realtor to file a sworn answer to allegations against
him or lose his license by default, amounted to a coercive
deprivation of the Fifth Amendment right to withhold testimony

                                 7
in an administrative proceeding. 281 So. 2d at 491-92 (“The basic
constitutional infirmity of the statute lies in requirement of a
response under threat of license revocation or suspension, which
amounts to compelling the defendant to be a witness against
himself” under the state and federal constitutions.). In doing so,
the court made clear that the Fifth Amendment “right to remain
silent applies not only to the traditional criminal case, but also to
proceedings ‘penal’ in nature in that they tend to degrade the
individual’s professional standing, professional reputation or
livelihood.” Id. at 491. Further, it surmised that “a legislative
enactment allowing but not requiring a defendant to answer would
not be constitutionally objectionable, but we are not confronted
with such a provision here.” Id. at 492.

     An obvious takeaway from Vining is that license-deprivation
is penal in nature, thereby confirming that other professionals,
such as attorneys and physicians, retain their Fifth Amendment
privilege in the face of administrative disciplinary proceedings.
Less obvious is the court’s holding that the statute at issue
effectively shifted the burden of proof from the Real Estate
Commission to the realtor, an unconstitutional result under the
court’s analysis. Id. By parallel reasoning, other forms of proof or
procedure that shift the evidentiary burden—such as a
presumption of negligence—could be subject to invalidation.

     Applied here, the question is whether allowing an adverse
inference from Dr. Omulepu’s silence can be drawn without
crossing the line into invalid burden-shifting. On this point, an
adverse inference is unlike a presumption because it merely allows
the fact-finder to infer a fact that is rationally related to facts
established in the record; it does not require that an inference be
adverse, nor does it shift the burden of proof. But the concept has
the potential to be misconstrued as allowing an adverse inference
to become an independent fact that by itself can meet the burden
of proof to establish substandard patient care, which it cannot. For
example, in Scott v. Department of Professional Regulation, 603 So.
2d 519 (Fla. 1st DCA 1992), opinion clarified (Aug. 12, 1992), a
license-suspension order was reversed because it was based
entirely on an inadmissible hearsay report. The nurse failed to
appear at the hearing or respond to the complaint against her, but
doing so “did not relieve the [Department] of its obligation to

                                 8
substantiate the charges by presenting sufficient evidence.” Id. at
520. Had Nurse Scott chosen to appear, but invoked her privilege
and refused to testify, a similar result would have been likely:
sufficient record evidence—apart from any adverse inference—
would have been necessary to support license-suspension. See, e.g.,
Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA
2006) (“The adverse inference instruction does not relieve a party
from its burden of proof at trial.”).

     As to Dr. Omulepu’s silence, the administrative law judge not
only drew from it an adverse inference that malpractice occurred,
but also concluded that it was the “only inference” to be drawn in
the case based on other evidence independently establishing that
Dr. Omulepu had acted negligently; indeed, Dr. Omulepu had
tacitly admitted to doing so by telling a patient’s mom that he’d
“messed up” the surgery. Sufficient record evidence—apart from
the adverse inference from the physician’s silence—supported the
factual findings of substandard medical care, making the adverse
inference supplemental (and probably unnecessary) to affirm in
this case (or making it harmless error if the adverse inference had
been impermissibly drawn).

     The point is that an inference must be rooted in and flow
directly from record evidence establishing professional
misconduct; an inference alone cannot establish liability. See, e.g.,
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d
1298, 1304 (11th Cir. 2009) (“[A] dismissal following the assertion
of the Fifth Amendment violates the Constitution where the
inferences drawn from Fifth–Amendment–protected silence are
treated as a substitute for the need for evidence on an ultimate
issue of fact.”). As Judge Lucas said on this point:

    The effect of the adverse inference is not without limits.
    For example, under federal law, a court may not enter
    summary judgment or dismiss a complaint based solely
    on a party’s assertion of the Fifth Amendment and the
    adverse inference against the litigant’s silence. This
    follows from the basic proposition that whatever
    inference or persuasiveness it may give rise to, silence, by
    itself, is not a substitute for evidence. Nor has any
    reported Florida decision upheld adjudication in favor of

                                 9
    a plaintiff’s claim absent some evidence in addition to the
    defendant’s Fifth Amendment objection.

Balance of Silence, at 36 (footnotes omitted). Simply put, an
administrative complaint of medical negligence against a
physician who chooses to exercise a Fifth Amendment privilege
cannot support discipline without adequate supporting evidence of
the claimed misconduct; the physician’s silence is insufficient to
shift or meet the regulator’s evidentiary burden.

     A final note is that Fifth Amendment jurisprudence as it
applies to criminal trials versus civil proceedings is starkly
different. Silence is protected vigilantly in the former (to prevent
government overreach in criminal cases) but loathed in the latter
(because society expects people to defend themselves against false
charges). This gulf signifies an ongoing need to discern where to
draw the “line between unlawful compulsion against one party’s
right to remain silent and infringement of another party’s right of
access to the court” as Judge Lucas has written. Id. at 43. “Drawing
it inescapably involves a question of judgment.” Id.

                 _____________________________


Monica L. Felder Rodriguez, Rodriguez & Perry, P.A., Coral
Springs, for Appellant.

Sarah Young Hodges, Chief Appellate Counsel; Carrie B.
McNamara, Katelyn R. Boswell, and Mari H. McCully, Assistant
General Counsels, Florida Department of Health, Tallahassee, for
Appellee.




                                10
