STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 00-3455
)
ZAFAR S. SHAH, M.D., )
)
Respondent. )
____________________________________)
RECOMMENDED ORDER
Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 8-9, 2000, in Dade City, Florida.
APPEARANCES
For Petitioner: Robert C. Byerts, Esquire
Kim Kluck, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
For Respondent: A. R. Mander, III, Esquire
Greenfelder, Mander, Hanson, Murphy and Dwyer
14217 Third Street
Dade City, Florida 33523 STATEMENT OF THE ISSUES
Did the Respondent commit the violations alleged in the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
PRELIMINARY STATEMENT
By an Administrative Complaint dated June 26, 2000, and filed with the Division of Administrative Hearings (Division) on August 16, 2000, the Department of Health, Board of Medicine (Board) is seeking to revoke, suspend, or otherwise discipline Respondent's license to practice medicine in the State of Florida.
As grounds therefor, the Board alleges that Respondent violated: (1) Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, with regard to a patient known as J.V.; (2) Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity, with regard to a patient known as J.V.; (3) Section 458.331(1)(x), Florida Statutes, by violating an express prohibition against sexual misconduct stated in Section 458.329, Florida Statutes, and Rule 64B8-9.008, Florida Administrative Code, in his actions with the patient known as J.V.; (4) Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under
similar conditions and circumstances, with regard to a patient known as A.C.; (5) Section 458.331(1)(j), Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity, with regard to a patient known as A.C.; (6) Section 458.331(1)(x), Florida Statutes, by violating an express prohibition against sexual misconduct stated in Section 458.329, Florida Statutes, and Rule 64B8-9.008, Florida Administrative Code, in his actions with patient A.C.; (7) Section 458.331(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, with regard to a patient known as T.R.; (8) Section 458.331(j), Florida Statutes, by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity, with regard to a patient known as T.R.; (9) Section 458.331(1)(x), Florida Statutes, by violating an express prohibition against sexual misconduct stated in Section 458.329, Florida Statutes, and Rule 64B8-9.008, Florida Administrative Code, in his actions with patient T.R.; and (10) Section 458.331(1)(m), Florida Statutes, by failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician
extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, in that Respondent failed to document any information to justify writing an antibiotic prescription for patient T.H.
By an Election of Rights filed with the Board, Respondent denied the allegations contained in the Administrative Complaint and requested a formal administrative hearing.
By letter dated August 1, 2000, the Board referred this matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.
The Board presented the testimony of J.V., Deborah Suckow, Liliane Gonzalez, Rebecca Steponaitis, and Clarice Freese. The Board also presented the videotaped deposition of Thomas Hicks, M.D., in lieu of his live testimony at the hearing. The Board’s Exhibits 1 and 2 were admitted in evidence. Respondent testified in his own behalf and presented the testimony of Gloria Frum, Kelley Ann Pelfrey, Virginia Demerails, Eloise Bortree, Anita Corwin and Doyle Springfield. After hearing the testimony of Kelley Ann Pelfrey, Virginia Demerails, Eloise Bortree, and Anita Corwin, Petitioner's motion to strike their testimony was granted.
Respondent's Exhibits 1-3 were admitted in evidence.
Respondent's Exhibit 4 was marked for identification but was not offered in evidence. Sections 458.305, 458.329, and 458.331, Florida Statutes and Rules 64B8-8.001 and 64B8-9.008, Florida Administrative Code, were officially recognized. The Final Orders and Recommended Orders in Department of Professional Regulation v. James G. Robertson, M.D., DOAH Case No. 92-3310, Department of Professional Regulation v. Archbold M. Jones, Jr., M.D., DOAH Case No. 90-3591, and Department of Professional Regulation v. William S. Piper, DOAH Case No. 89- 3670 are officially recognized.
During the course of the hearing, Respondent's counsel made an ore tenus motion to withdraw as counsel for Respondent with respect to the allegations contained in the Board's Case No. 1999-59654 concerning patient T.H. based upon a conflict arising from counsel's representation of two witnesses the Board intended to present concerning T.H. Respondent's counsel also made an ore tenus motion to sever that portion of the Administrative Complaint concerning the Board's Case No.
1999-59654. Both motions were granted and an order was entered on November 28, 2000, severing that portion of the Administrative Complaint pertaining to the Board's Case No. 1999-59654, and a new file was opened by the Division and assigned Division Case No. 00-4817PL. Also, during the course of the hearing, the Board advised the undersigned that it had
no evidence to present in the Board's Case No. 2000-01665 pertaining to the allegations concerning Patient A.C.
At the conclusion of the hearing no deadline was announced for the submission of proposed recommended orders, which resulted in some confusion as to a date for the submission of proposed recommended orders. A three-volume Transcript of this proceeding was filed with the Division on December 26, 2000. Petitioner timely filed its Proposed Recommended Order under the 10-day submission date set out in Rule 28-106.216(2), Florida Administrative Code. However, because of the confusion concerning the submission of proposed recommended orders, Respondent's Motion to Extend Time For Filing Respondent's Proposed Recommended Order was granted with the understanding that any time constraint imposed under Rule 28-106.216(1), Florida Administrative Code, was waived in accordance with Rule 28-106.216(2), Florida Administrative Code, and that the Board would be allowed to file a response to Respondent's Proposed Recommended Order if it considered a response necessary. Respondent timely filed his Proposed Recommended Orders under the extended time frame, and the Board timely filed its response to Respondent's Proposed Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
The Board is the agency charged with regulating the practice of medicine in the State of Florida.
Respondent is and, at all times material hereto, has been licensed to practice medicine in the State of Florida.
On June 23, 1999, patient J.V., a 19-year-old female, presented at Mid Town Clinic (Mid Town) in Zephyrhills, Florida, along with Gabriel Amparo, the man with whom she lived and the father of her children. J.V., a Medicaid eligible patient, appeared at Mid Town to obtain a referral from a primary care physician to Dr. Ferilta, her gynecologist, in order to receive an intrauterine device (IUD).
J.V. had appeared previously at Mid Town with Gabriel Amparo, who also received medical care and treatment from the physicians at Mid Town.
On June 17 and 18, 1999, Gabriel Amparo had medical appointments at Mid Town and was accompanied by J.V. While at Mid Town with Gabriel Amparo on June 17 or 18, 1999, J.V. made an appointment for herself at Mid Town for June 22, 1999, at 3:45 p.m., and Gabriel Amparo also made an appointment for
June 22, 1999, at 4:00 p.m. At the time J.V. made her appointment for June 22, 1999, she was given new patient forms, which J.V. filled out.
On June 22, 1999, both J.V. and Gabriel Amparo arrived at Mid Town approximately 30 minutes late for their appointments. Respondent had already left Mid Town in order to make his rounds at the Hospital.
J.V. lost her temper and became upset with the female staff members on duty that day. J.V. and Gabriel Amparo were given the last two appointments for June 23, 1999.
J.V. and Gabriel Amparo arrived late for their appointments on June 23, 1999. Respondent, the physician at Mid Town who treated both J.V. and Gabriel Amparo on
June 23, 1999, was still at Mid Town. However, the female nurses had already left for the day.
J.V. was advised that the female nurses had left for the day. However, J.V. insisted that she be seen by the physician.
J.V., was wearing a dark blue dress with flowers that buttoned down the front, from her chest to the middle of her thighs. The staff at Mid Town noted her appearance for the appointment and placed her in an examination room. The examination room contained a sink, chairs, and examination table.
Respondent and J.V. discussed her request for a referral to Dr. Ferilta for the insertion of an IUD. Respondent asked J.V. if she was having any health problems.
J.V. told Respondent that she thought she might have a urinary tract infection. J.V. identified bladder pain but did not identify symptoms in her pelvic area.
At Respondent's direction, J.V. left the examination room, provided a urine sample, then returned to the examination room. Respondent reviewed the results of the urine test, indicated to J.V. that she might have a urinary tract infection, then directed J.V. to lay on her back on the examination table.
Respondent directed J.V. to unbutton her dress, probed her abdomen from her stomach to her pubic bone, asked
J.V. if she felt any pain, and told J.V. that he would check her vaginal fluid to see if she had any discharge.
J.V. was wearing underwear. Respondent did not have on gloves and did not wash his hands before examining J.V. Respondent moved J.V.'s underwear from over her vagina and placed his ungloved finger in, though not all the way in, J.V.'s vagina. Respondent did not say anything to J.V. about her vaginal fluid or discharge.
Respondent did not utilize cotton swabs, glass slides, or any other type of instrument in connection with his
manipulation of J.V.'s vagina. Respondent did not wash his hands after his manipulation of J.V.'s vagina. Respondent and
J.V. were alone in the examination room during the entire time of the incident. Respondent was apparently mistaken in his testimony that Gabriel Amparo came into the examination room towards the end of the examination.
Respondent did not: (a) make any sexual comments to J.V.; (b) ask J.V. to go out with him; (c) rub against J.V.;
(d) appear to have an erection; (e) fondle J.V.'s breasts; (f) expose himself in any sexual way; and (g) act sexually or seductive in any way.
Respondent advised J.V. that he wanted her to give a blood sample the next morning, June 24, 1999, after she had fasted. Upon leaving the examination room, J.V. chatted with Gloria Frum who advised J.V. of the necessity of fasting a period of time before the blood draw the next morning. The blood was drawn at Mid Town on the morning of June 24, 1999.
J.V. was apparently mistaken about giving the blood sample on June 23, 1999.
During J.V.'s discussion with Gloria Frum after the examination, J.V. made no complaints about Respondent or the manner in which he performed the examination.
The referral for the IUD was sent to Dr. Ferilta on June 24, 1999. J.V. was apparently mistaken about not receiving a referral for the IUD.
Following the incident with Respondent, J.V. told Gabriel Amparo about what had happened. The next day, J.V. contacted Dr. Ferlita's office and spoke with Debbie Suckow, Dr. Ferlita's office manager. J.V. inquired of Ms. Suckow as to how Dr. Ferlita performed pelvic examinations. J.V. told Ms. Suckow how Respondent had performed her vaginal examination. Ms. Suckow informed J.V. that it was incorrect to perform a vaginal examination without gloves and without a chaperone being present.
A short time after talking with Ms. Suckow, J.V. spoke to the Zephyrhills Police Department and made a report concerning the incident with Respondent. J.V. did not report the incident earlier because until she spoke with Ms. Suckow she was not sure Respondent had done anything wrong.
The Zephyrhills Police Department referred J.V. to the hotline for Sunrise Domestic Violence and Sexual Assault Center. At Sunrise, J.V. spoke with, and later met with, Lillian Gonzalez, an outreach counselor. After relating the incident to Ms. Gonzalez, J.V. met with Clarice Freese, program supervisor, and related the incident to her.
Subsequently, J.V. attended counseling sessions until a transportation problem caused her to stop. Mrs. Gonzalez referred J.V. to an attorney and to the agency regulating physicians in Tallahassee, Florida.
J.V.'s testimony concerning the procedure used by Respondent in his examination of J.V. on June 23, 1999, is credible, notwithstanding the testimony of Respondent to the contrary, which I find lacks credibility.
The normal course of an examination of a patient who presents with a suspected urinary tract infection does not involve a full pelvic examination, particularly where the patient does not identify symptoms in the pelvic area.
The standard of care for a pelvic examination includes the use of gloves and the provision of a chaperone in the examination room.
It is not usual and customary to simply push aside underclothing to perform an examination, and a physician would likely be unable to adequately perform an examination by doing so.
It is outside the standard of care for a physician
to manipulate external genitals with an ungloved finger as part of a pelvic examination.
It is outside the standard of care to insert an ungloved finger into the patient's vagina while performing a pelvic examination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). The Board has the burden of proof in this proceeding. To meet its burden, the Board must establish facts upon which its allegations are based by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996) and Sections 120.57(1)(j) and 458.331(3), Florida Statutes (2000).
32. Sections 458.331(1)(j)(t)(x)(2)(b)(c)(d)(f), Florida Statutes, provide in pertinent part as follows:
Grounds for disciplinary action; action by the board and department.-
The following acts shall constitute grounds for which the disciplinary actions
specified in subsection (2) may be taken:
* * *
(j) Exercising influence within a patient physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable
of giving free, full, and informed consent to sexual activity with his or her physician.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances . . . As used in this paragraph, . . . "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances" shall not be construed so as to require more than one instance, event, or act.
* * *
(x) 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 . . . .
* * *
When the board finds any person guilty of any of the grounds set forth in subsection (1), . . . it may enter an order imposing one or more of the following penalties:
* * *
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $10,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
(Emphasis furnished.)
Section 458.329, Florida Statutes, provides as follows:
Sexual misconduct in the practice of medicine.-The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician- patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of medicine is prohibited. (Emphasis furnished.)
Rule 64B8-9.008, Florida Administrative Code, provides in pertinent part as follows:
Sexual contact with a patient is sexual misconduct and is violation of Sections 458.329 and 458.331(1)(j), Florida Statutes.
For purposes of this rule, sexual misconduct between a physician and a patient includes, but is not limited to;
Sexual behavior or involvement with a patient including verbal or physical behavior which
* * *
may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or
may reasonably be interpreted by the patient as being sexual. (Emphasis furnished.)
Clearly, J.V. failed to recall correctly all of the details (such as when she gave the blood sample and the IUD
referral to Dr. Ferilta) of her visit to Respondent's office on June 23, 1999. However, J.V. did not waiver in the important part of her testimony concerning the procedure used by Respondent in examining her on June 23, 1999. There is no evidence that J.V. was being vindictive or somehow attempting to coerce Respondent by bringing these charges. Likewise, there is no evidence that J.V. had anything to gain by bringing these charges. Furthermore, there is no evidence that J.V. was being untruthful in her recitation of the procedure used by Respondent in his examination of her on June 23, 1999. Respondent's attempt to introduce evidence as to J.V.'s lifestyle and profession so as to discredit her reputation for truth and honesty "just did not wash." On the other hand, Respondent has a great deal to lose if the allegations are proven.
The Board has demonstrated by clear and convincing
evidence that Respondent: (a) fondled or otherwise touched
J.V. in her vagina without washing his hands and without wearing gloves and such conduct deviates from what a reasonable and prudent physician would have done under similar circumstances and is thereby subject to discipline under Section 458.331(1)(t), Florida Statutes; (b) fondled or otherwise touched J.V.'s genitalia which was outside the standard of care and constituted sexual misconduct in the
practice of medicine in violation of Section 458.329, Florida Statutes, and is thereby subject to discipline under Section 458.331(1)(j), Florida Statutes; and (c) having violated Section 458.329, Florida Statutes, and Rule 64B8-9.008, Florida Administrative Code, is thereby subject to discipline under Section 458.331(1)(x), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under Rule 64B8-8.001(2), Florida Administrative Code, and Aggravating and Mitigating Circumstances under Rule 64B8- 8.001(3), Florida Administrative Code, it is recommended that the Board enter a final order finding Respondent guilty of the charges outlined in the Administrative Complaint and imposing the following penalty: (a) One-year's probation, during which Respondent shall attend the Florida Medical Association- sponsored continuing medical education course, entitled Professional Boundaries: Preserving the Physician-Patient Relationship and shall be evaluated by the Physician's Recovery Network; and (b) Assessment of an administrative fine of $2,500.00. It is further recommended that since there was no evidence presented by the Board in its Case No. 2000-01665 that the Board dismiss Case No. 2000-01665 set out in
Administrative Complaint in paragraphs 19 through 32, including Counts Four through Six.
DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6947 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001.
COPIES FURNISHED:
Robert C. Byerts, Esquire Kim Kluck, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
A. R. Mander, III, Esquire Greenfelder, Mander, Hanson
Murphy and Dwyer 14217 Third Street
Dade City, Florida 33523
Tanya Williams, Executive Director Board of Medicine
Department of Health Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0750
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way Bin A00
Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way Bin A00
Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 01, 2002 | Agency Final Order | |
| Feb. 27, 2001 | Recommended Order | Petitioner presented sufficient evidence to show that Respondent had violated the statutes and rules alleged in the Administrative Complaint. |
