In a legal dispute that focused on an accused doctor’s right to remain silent, an appeals court has upheld the license revocation of a South Florida physician who punctured internal organs of two patients while performing liposuction procedures.
A three-judge panel of the 1st District Court of Appeal ruled Friday against physician Osakatukei Omulepu, who argued that his constitutional rights had been violated when an administrative law judge took into account his refusal to testify during a hearing. The administrative law judge’s findings ultimately led to the Board of Medicine deciding last year to revoke Omulepu’s medical license.
The discipline stemmed from liposuction procedures on May 15, 2015, in Miami-Dade County that resulted in one patient suffering holes in her liver and another suffering a hole in her small bowel, according to documents in the case. Omulepu was accused of puncturing the organs while use a device known as a cannula, a tube that is inserted into the body to remove fat. Both women needed to be hospitalized.
In January 2017 recommended order, Administrative Law Judge Mary Li Creasy concluded that Omulepu had committed malpractice. During a hearing, Omulepu declined to testify, citing a Fifth Amendment right against self-incrimination. In the recommended order, Creasy wrote that Omelepu’s silence allowed her to draw “adverse inferences from his silence.”
“The only inference that can be drawn is that respondent (Omelepu) violated the standard of care and committed malpractice by the reckless and improper angling of the cannula for these two procedures, resulting in the perforation of internal organs,” Creasy wrote.
But Omelepu’s attorney contended that such an inference violated Omelepu’s rights.
“The law is clear that this is a penal proceeding, and licensees have the same right against self-incrimination as provided in criminal cases. … The law is also clear that no inference of guilt may be made from one’s exercise of the right to remain silent,” said a document filed by Omelepu’s attorney after the recommended order. “Allowing a jury or judge to find a defendant or respondent must have committed acts alleged because he or she did not deny them essentially decimates the protection the Fifth Amendment provides.”
But the appeals court Friday rejected the arguments, pointing to broader evidence of malpractice, including an alleged statement by Omelepu to a patient’s mother that he had “messed up.”
“(The) adverse inference combined with other probative evidence that advanced the (Department of Health’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 of Medicine’s) ultimate decision,” said the ruling, written by appeals-court Judge Timothy Osterhaus and joined by judges Joseph Lewis and Scott Makar. “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.”
Makar, in a concurring opinion, indicated the ruling could provide a framework for other physician discipline cases.
“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,” Makar wrote. “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.”
