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Omulepu v. Department of Health

Florida Court of Appeals, First District

June 22, 2018

Osakatukei O. Omulepu, M.D., Appellant,
v.
Department of Health, Board of Medicine, Appellee.

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

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

          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.

          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.

          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 ...


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