Osakatukei O. Omulepu, M.D., Appellant,
Department of Health, Board of Medicine, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Department of Health, Board of Medicine.
Magdalena Averhoff, Chair.
L. Felder Rodriguez, Rodriguez & Perry, P.A., Coral
Springs, for Appellant.
Young Hodges, Chief Appellate Counsel; Carrie B. McNamara,
Katelyn R. Boswell, and Mari H. McCully, Assistant General
Counsels, Florida Department of Health, Tallahassee, for
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.
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.
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.
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.
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.
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