STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHYSICAL ) THERAPISTS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6202

)

MICHAEL GUIRGIS SEDRA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on September 9 and 10, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: David Bogenschutz, Esquire

Jefferson Bank Building, Suite 500 600 South Andrews Avenue

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offense set forth in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated July 26, 1991, petitioner charged that respondent, a licensed physical therapist in the State of Florida, violated the provisions of Section 486.125(1)(e) and (h), Florida Statutes, and Rule 21MM- 6.001(2)(d), Florida Administrative Code. The gravamen of petitioner's charge is the claim that respondent committed a sexual assault upon a patient.

Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called, as witnesses: R. I., the complaining patient; Howard Seiden, an expert in forensic serology; George Duncan, an expert in forensic serology and DNA analysis; Martin L. Tracey, Jr., an expert in molecular biology and population genetics; Frances O'Brien, a licensed practical nurse; and Ray M. Patterson, an expert in physical therapy. Petitioner's exhibits 2-10 were received into evidence. Respondent testified on his own behalf and called Ricky B. Libman, Thomas D. Masching, Debra Goldberg, Bernard

1. Foreman, Freda Untermeyer, Joseph R. Mazzara, Yvette Gonzalez, Cris Aiken, Tom La Ponite, Joan La Pointe, and Magda Sedra as witnesses. Respondent's exhibits 1-9 were received into evidence.

   
   

   The transcript of hearing was filed October 7, 1992, and the parties were granted leave until January 1, 1993, to file proposed findings of fact.

   Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031(2), Florida Administrative Code. The parties' proposals have been addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. Respondent, Michael Guirgis Sedra, is now and was at all times material hereto a licensed physical therapist in the State of Florida, having been issued license number PT 0004299.

      
      

   2. During June 1990, respondent was under contract with Professional Health Care Services Agency to provide physical therapy services, and on June 24, 1990, was assigned to Humana Hospital of South Broward (Humana Hospital) to render physical therapy services in the absence of the assigned therapist. On such date, respondent arrived at the hospital at or about 8:00 a.m., and rendered services to approximately 20-24 patients. Included among the patients treated by respondent that day was R. I. (the "patient"), the complaining witness in the instant case.

      
      

   3. The patient was admitted to Humana Hospital on June 18, 1990, complaining of abdominal pain, primarily in the right lower quadrant radiating towards the back. The patient's initial diagnosis was stated to be abdominal pain, electrolyte imbalance, and diabetes mellitus, and her ultimate diagnosis chrolecystolithiasis, hepatomegaly with fatty infiltration, uncontrolled diabetes mellitus, hypertension, electrolyte imbalance, and degenerative joint disease of the right hip.

      
      

   4. During the patient's course of treatment at Humana Hospital, her physician entered an order on June 24, 1990, for physical therapy. Pursuant to such order, respondent visited the patient in her room, at some time between 10:00 a.m. and 12:00 p.m., and performed a brief examination. Following such examination, respondent advised the patient that he would return that afternoon to transport her to the physical therapy department to render the treatments ordered by her physician. These would be the first physical therapy treatments ever experienced by the patient.

      
      

   5. At 2:35 p.m., June 24, 1990, respondent transported the patient, by wheelchair, from her room to the physical therapy department, which was located downstairs and vacant at the time. Once the patient was on the treatment table, lying on her left side, respondent provided hot pack treatment for approximately

      20 minutes and an ultrasound with electrical stimulation treatment for

      approximately six minutes to the patient's right side. The ultrasound treatment combines a form of deep heat with electrical stimulation, which produces a feeling of contraction and relaxation of the area to which it is applied. Here, because the patient's pain was located in the right hip area, such treatment was mostly applied to her sacroiliac joint (the tail bone) and right hip area.

      Following treatment, respondent returned the patient to her room between 3:00

      p.m. and 3:15 p.m.

      
      

   6. There is no significant dispute regarding the foregoing facts, nor the propriety of the hot pack and ultrasound treatments rendered to the patient. Rather, respondent's evaluation and treatment was deemed not only within the prevailing standards of practice, but "top notch," by petitioner's expert. What is in dispute, however, is whether following the course of such treatments any improprieties occurred or, more specifically, whether respondent sexually assaulted the patient in the physical therapy room.

      
      

      The participants

      
      

   7. The patient, age 62 at the time in question, was born in Hungary, immigrated to the United States at age 29, and is a naturalized citizen. She resides in Hollywood, Florida, where she shares a home with her son and daughter-in-law, is retired, and has been divorced since 1980.

      
      

   8. The patient's formal education is limited to the eight years she attained in her native country; she contends she neither reads nor writes the English language; and she speaks the English language in a somewhat accented and broken manner. Her comprehension of the language, based on her testimony at trial and a review of the record, is, however, sound. Notwithstanding, her testimony regarding many material matters was conflicting and lacked candor.

      
      

   9. The respondent was born in Cairo, Egypt, on January 20, 1954, immigrated to the United States in or about 1982, and is a naturalized citizen. He resides in Lauderhill, Florida, with his wife and two daughters, 5 and 9 years of age, and has been licensed as a physical therapist in the State of Florida since August 1985.

      
      

   10. But for the pending charges, respondent has never been the subject of disciplinary action. He is articulate, genteel in manner, considered truthful and honest by those who know him, as well as competent, considerate and compassionate.

       
       

       The dispute

       
       

   11. To support its case, petitioner offered the testimony of the patient, who testified that on Sunday, June 24, 1990, respondent transported her from her room, which was located on the fourth floor of the hospital, to the physical therapy department room, which was located on the first floor. According to petitioner, no one else was present in the area, and as respondent wheeled her into the room he paused momentarily and locked the door. Respondent then assisted the patient onto a physical therapy table, where he positioned her on her left side, placed three pillows between her legs, and then, over the course of the next 20 to 30 minutes, treated her with hot packs and ultrasound with electrical stimulation.

       
       

   12. Respondent concedes that he transported the patient to the physical therapy room as asserted by the patient, but avers that the area was not empty at the time. According to respondent, the physical therapy department abuts two

       other departments in the hospital, respiratory and EKG, and at least the respiratory department was staffed that day. Moreover, the physical therapy department is located near the entrance to the hospital, the cafeteria, and the elevators, all of which are subject to public access. As to the remainder of the patient's assertions, respondent denies that the door was locked, or even capable of being locked, and denies that he placed three pillows between the patient's legs. Rather, he avers that he assisted her onto a physical therapy table where he positioned her on her left side, placed one pillow between her legs and two under her head, and then, over the course of the next 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. 1/

       
       

   13. Following the treatments, the patient avers that the respondent sexually assaulted her before returning her to her room. Respondent denies such assertion, contends that no improprieties occurred, and that following the conclusion of the treatments he returned her to her room. Where the truth lies is, at best, elusive. 2/

       
       

   14. The patient's description at hearing, concerning respondent's sexual assault and her reactions, when compared to previous statements she had given (respondent's exhibits 1, 3, and 8), is a gross exaggeration, and conflicts in material respects with prior recountings, which she either denies or rejects. Juxtaposed with such uncertain proof, the proof offered on behalf of the respondent was consistent and appeared worthy of belief. Under such circumstances, it cannot be concluded, with the requisite degree of certainty required by law, which version accurately reflects what transpired on the day in question or that any offense was committed. 3/

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1), Florida Statutes.

       
       

   16. Pertinent to this case, petitioner charges that respondent's conduct violated Section 486.125(l)(e) and (h), Florida Statutes, and Rule 21MM- 6.001(2)(d), Florida Administrative Code. Section 486.125(1), Florida Statutes, provides:

       
       

       1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

          * * *

          (e) Failing to maintain acceptable standards of physical therapy practice as set forth by the board in rules adopted pursuant to this chapter.

          * * *

          (h) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing.

          
          

          And, Rule 21MM-6.001(2), Florida Administrative Code, provides:

          
          

       2. Physical Therapy Personnel

          Responsi bilities to Patients' Rights and Dignity.

          * * *

          (d) Physical therapists and physical therapist assistants shall avoid acts which blatantly disregard a patient's modesty and shall neither suggest nor engage in sexual activities with patients under their care.

          
          

   17. Where, as here, petitioner seeks to revoke a professional license, it bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

       
       

       We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds at page 958, the following:

       
       

       "Clear and convincing evidence" is an

       inter mediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

       
       

   18. Here, as noted in the findings of fact, the proof fails to demonstrate clearly and convincingly that respondent committed the offense charged in the administrative complaint. Consequently, petitioner has failed to sustain its burden of proof.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative

complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of June 1993.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June 1993.

ENDNOTES

1/ Here, it would have been helpful in resolving the factual disputes at issue in this case had proof been offered to corroborate the diverse testimony of the patient and the respondent by demonstrating , among other things, whether the door to the physical therapy room could or could not be locked and by demonstrating whether the adjacent areas were or were not staffed on the day in question. Such corrabative proof was not, however, offered at hearing and the resolution of the dispute was left in large measure to the credibility of the participants.

2/ Apparently petitioner also views the proof, including the testimony of the patient, to be less than compelling since its proposed recommended order observes, at page 7:

To arrive at the answer as to whether the Respondent committed the acts alleged in the Administrative Complaint, it is imperative that it be determined whether the seminal fluid found on the gown belonged to the Respondent . . . All of the testimony of the patient, the respondent, and character references provide merely hints and to some degree smoke, but no competent and substantial guide to the answer. The answer and the case lie in DNA.

The DNA proof, discussed in endnote 3, was not, however, so compelling as to alter the character of the proof such that it could be concluded with the requisite degree of certainty required by law that any offense occurred on the day in question.

3/ In concluding that the patient's testimony is not compelling and the petitioner has failed to demonstrate, with the requisite degree of certainty, that the alleged impropriety occurred, the testimony of Nurse O'Brien regarding her observations of the patient when she returned to her room and the DNA print identification evidence has not been overlooked. Such proof does not, however, either independently or in combination with other proof, alter the conclusion reached.

Nurse O'Brien's observations of the patient, shortly after she was returned to her room, included the patient's comment that she had been raped, that the patient evidenced an unsettled emotional state, and that her blood pressure was significantly elevated. While such reaction by the patient may be consistent with her claim of sexual assault, it is likewise consistent with a fabrication or misapprehension of what occurred. Where, as here, the witness fails to relate with the requisite degree of certainty what transpired, such comments or observations lend little to the quest to confidently resolve this dispute.

As with the observations of Nurse O'Brien, the results of the laboratory analysis offered by petitioner are likewise not dispositive or free from doubt.

The laboratory analysis offered by petitioner involved, inter alia, an examination of four stains on the patient's gown. Upon application of a screening test to identify the presence of seminal fluid, three of the stains proved negative, and one very small stain proved positive. Further testing of the small stain failed to discover intact spermatozoa, but did prove positive for P-30 (a protein in the male prostate gland which is used as a biological marker for seminal fluid). Under such circumstances, the expert concluded, which conclusion is credited, that seminal fluid was present on that small stain.

Subsequently, DNA print identification compared respondent's DNA structure as found in his blood with a small amount of DNA that was found on or extracted from the small stain. In the opinion of the experts, which is credited, the DNA in respondent's blood matched the DNA recovered from the small stain, and the chance that the DNA strands found in respondent's blood (the "coincidence factor") would be duplicated in some other person's cells was statistically established at 1 in 125,000.

The foregoing conclusions are not subject to serious debate. What is disputed is whether the DNA recovered from the stain was contained in the seminal fluid or was deposited or superimposed on such stain from another source. It is respondent's position that the seminal fluid was not his and, if a DNA match occurred, it was either because the DNA of the host of the seminal fluid matched respondent's DNA or the DNA was derived from a source other than seminal fluid. [For example, sweat or skin sloughing when respondent handled the patient's gown during examination or treatment could have provided the cellular material from which the DNA match was derived. In this regard, it is observed that such activities could have provided the cellular material from which the DNA match was derived, and the conclusion that respondent's DNA matched the DNA recovered from the small stain does not suggest that such cellular material was fortuitously deposited or limited to the small stain and not located on other areas surrounding the stain or on other parts of the gown. That conclusion cannot be drawn because the only area of the gown upon which the DNA analysis was performed was the one small stain.] The resolution of this question again depends heavily on the credibility of the patient.

According to the patient, the gown was purchased from K-Mart about one year before the incident, stored in her dresser at home, and never worn before it was brought to the hospital by her daughter-in-law. When she first donned the gown does not appear of record, but from observing the many stains, discolorations and spots on the gown it is highly unlikely the gown was never worn before the day in question, or was not subject to contamination by other than respondent.

Under such circumstances, the patient's characterization of the gown as new on the day in question is rejected, and her testimony that the gown was never worn

prior to her hospital admission is suspect. As to the DNA match of the cellular material recovered from the stain, such material could have been derived from the seminal fluid or from some other source. All the DNA print identification could demonstrate was that the cellular material derived from the stain matched respondent's with the coincidence factor heretofore discussed, and not the source of the cellular material. The circumstances considered, the laboratory analysis and DNA print identification does not alter the conclusion reached.

The conclusion reached, that the proof does not demonstrate with the requisite degree of certainty required by law that any offense occurred on the day in question, does not of course resolve the ultimate question of whether a sexual assault did nor did not occur. It is, however, given the opportunity to observe the witnesses and to examine the other proof, the best conclusion that can be drawn with any sense of confidence.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

   
   

2. First sentence accepted, see paragraph 14. Subparagraph (a) addressed in paragraphs 7 and 8, subparagraph (b) addressed in paragraphs 3-5, subparagraph (c) addressed in paragraphs 2, subparagraph (d) addressed in endnote 2, subparagraph (e) addressed in paragraph 5, subparagraph (f) addressed in endnote 2, otherwise rejected as not compelling demonstrated, and subparagraph (g) addressed in endnote 2.

3-6. Addressed in endnote 2.

7. Rejected as not relevant. First, such was not the charge levied against respondent. Second, the proof fails to demonstrate clearly and convincingly, that the seminal fluid was respondents.

Respondent's proposed findings of fact consist of eight unnumbered paragraphs which, except for paragraph 1, consist of recitation of testimony and argument. Paragraph 1 is addressed in paragraph 1 of the recommended order and the remaining paragraphs are subordinate to or addressed in paragraphs 2-14 and endnote 2.

COPIES FURNISHED:

Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

David Bogenschutz, Esquire Jefferson Bank Building, Suite 500 600 South Andrews Avenue

Fort Lauderdale, Florida 33301

Dr. Marm Harris, Executive Director Board of Physical Therapy

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006202

Orders for Case No: 91-006202