STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5917

)

ASHOK HARIHAR BHAT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

On June 16, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Plendl, Senior Attorney

Hugh R. Brown, Esquire Staff Attorney

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Grover C. Freeman, Esquire

Freeman, Hunter & Malloy Enterprise Plaza, Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Medicine should discipline the Respondent, Ashok Harihar Bhat, M.D., on charges of sexual misconduct in the practice of medicine on February 9, 1993.

PRELIMINARY STATEMENT

On September 17, 1993, the Department of Business and Professional Regulation filed an Administrative Complaint, BPR Case No. 93-07167, against the Respondent charging him with sexual misconduct in the practice of medicine on February 9, 1993, in violation of Section 458.331(1)(j) and (x), Fla. Stat. (1993). The Respondent denied the charges and demanded formal administrative proceedings under Section 120.57(1), Fla. Stat. (1993). On October 14, 1993, the matter was referred to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer.

Initially, the case was set for final hearing on February 2, 1994, but the Respondent's Motion for Continuance was granted, and final hearing was continued to May 24, 1994. Subsequently, the Department's Motion for Continuance was granted, and final hearing was continued to June 16, 1994.

At the final hearing, the Department called three witnesses and had Petitioner's Exhibit 2 admitted in evidence. The Respondent called four witnesses and also testified in his own behalf. The Respondent also had Respondent's Exhibits 1 through 10 admitted in evidence.

At the conclusion of the hearing, the parties ordered the preparation of a transcript of the final hearing and requested 20 days from the filing of the transcript in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 93-5917.

Effective July 1, 1994, the Board of Medicine was transferred to the Agency for Health Care Administration (ACHA) under Section 20.42, Fla. Stat. (1993).

The caption of this case has been amended to reflect the transfer.

On August 5, 1994, the ACHA filed a Motion to Strike the Respondent's Proposed Recommended Order, to which the Respondent filed a response in opposition. The Motion to Strike is without merit and is denied.

FINDINGS OF FACT

1. On the afternoon of February 9, 1993, the Respondent, Ashok Harihar Bhat, M.D., saw patient K. Y. for a follow-up visit at one of the two medical facilities he operates in Tampa, Florida, one located at 613 Martin Luther King, Jr., Boulevard. The Respondent has no present recollection of the visit. The patient was one of the 40 to 60 patients the Respondent sees in the facility during normal weekdays office hours of 9 a.m. to 7 p.m. (The Respondent also saw patients on Saturdays and, until October 19, 1993, on Sundays, and during rounds both before and after normal office hours in at least one of the seven local hospitals where he has privileges.)

   
   

2. The Respondent's wife, Suman Bhat, M.D., who is a psychiatrist, shares office space in the Respondent's medical facility on Martin Luther King, Jr., Boulevard. She maintains regular office hours from about 11 a.m. until 3 p.m. and was in her office on the afternoon of February 9, 1993. In fact, in her capacity as a psychiatrist, she also saw the patient, K. Y., on the afternoon of February 9, 1993, either just before or just after the patient's visit with the Respondent.

   
   

3. The Respondent's office is adjacent to his wife's and is accessible from his wife's office either through the common hallway or through a bathroom situated between their offices. In addition, from her office, Suman Bhat would be able to hear voices, noises and disturbances in the common hallway and, if they were loud enough, in the Respondent's examination rooms that are accessed via the common hallway.

   
   

4. The Respondent's office is conducted with an "open door" policy--i.e., if nurses or other office staff need to speak to the Respondent or enter an examination room for any reason while the Respondent is in an examination room, they are authorized and encouraged to knock and enter, without any prior notice or announcement. It is normal for such intrusions to occur numerous times at irregular and unpredictable intervals throughout the day. It also would be

   possible for the Respondent's wife to locate the Respondent in the office suite during the work day to speak to him, as needed, and to knock and enter an examination room without advance warning while the Respondent is conducting an examination. The Respondent never countermands his standard "open door" office policy and specifically did not do so on the afternoon of February 9, 1993.

   
   

5. The Respondent has no specific present recollection of the visit of the patient, K. Y., on the afternoon of February 9, 1993. Typically, the Respondent does not know who his patients will be on any particular day until he proceeds to the examination room and views the patient chart. There is no reason to believe that K. Y.'s patient visit on February 9, 1993, was any different. He then entered the examination room and talked to the patient regarding the reasons for the visit. According to the chart, consistent with parts of the patient's testimony, the patient told the Respondent that she wanted her Ortho Novum birth control pill prescription refilled. No gynecological examination or pap smear was necessary to refill the Ortho Novum prescription, and the Respondent did neither, because an associate of the Respondent had done them during a previous visit in October or November, 1992.

   
   

6. The Respondent also inquired of the patient as to whether her previous problems had resolved. According to the chart, consistent with parts of the patient's testimony, the patient complained of occasional cough, epigastric burning with acidity, and headaches. The Respondent checked the patient's blood pressure, pulse and respiration. He found that her blood pressure was 130 over

   80 and that she was afebrile. He also used a stethoscope to examine her lungs and heart, and he examined her abdomen by palpation. His examination revealed slight congestion in the throat, with rhinitis. The patient's lungs were clear, and her heart was regular, with regular rhythm. The Respondent's impression was that the patient had dyspepsia, heart burn from gastroesophageal reflex disease.

   
   

7. It was not necessary for the patient to disrobe, and she did not disrobe for the examination on February 9, 1993. Since the patient did not disrobe, it was not necessary for a nurse to be present in the examination room.

   
   

8. After the examination, diagnosis and treatment, the patient followed the Respondent to the lobby area where she sat until the receptionist scheduled the patient's next appointment. At that time, the patient made her co-payment of one dollar and left the office. At no time did she complain of any impropriety by the Respondent either to the Respondent, to Respondent's staff or to the Respondent's wife, Suman Bhat.

   
   

9. Subsequently, the patient accused the Respondent of various acts of sexual misconduct during the examination on February 9, 1993. The Respondent denies the charges.

   
   

10. Some of the patient's allegations are internally inconsistent. Some of the statements made by the patient and her boyfriend in support of her allegations have been inconsistent in material respects.

    
    

11. It would have been difficult if not, in some cases, practically impossible for the Respondent to accomplish the specific physical acts that have been alleged. It is alleged that he opened one button in the front of the patient's dress (which, according to deposition testimony which the patient recanted at final hearing, was tight-fitting) and pulled the patient's bra up to inappropriately feel her breasts. It also is alleged that, while using his right hand to listen to the patient's lungs with a stethoscope, the Respondent reached his left hand all the way around the patient's back to inappropriately

    touch her left breast. Finally, it is alleged that, while the patient was being pulled from a prone position on her back towards the Respondent onto her right side and was using her right arm to keep herself from falling off of the examination table, the Respondent lifted the patient's right hand several inches off of the examination table and placed it on his penis. If the Respondent, or anyone else, were inclined to sexual misconduct, it would have made more sense to commit acts that, physically, were easier to accomplish (assuming that it was physically possible to accomplish the acts at all).

    
    

12. Aside from the specific physical acts alleged to have occurred, it is improbable that the Respondent would have attempted any acts of sexual misconduct in the circumstances that prevailed in his office on February 9,

    1993--where he had no prior notice of the patient's appointment, where his "open door" policy was in effect, and where his wife was conducting business in the same office suite at the same time. Finally, the alleged misconduct would have been against the Respondent's personal, family and religious moral code of conduct and would have jeopardized the Respondent's standing as a practicing member of the Hindu religion and as a respected member of his family and of the East Indian community in Tampa.

    
    

13. Immediately after the alleged incident, the patient consulted an attorney for legal advice. Within 16 days after the alleged incident, the patient had signed a contingency fee contract for the retention of legal representation to sue the Respondent for damages in civil court. The hope for a monetary recovery from the Respondent could have served as a motive to falsely accuse the Respondent of sexual misconduct.

    
    

14. Based on the evidence, taken as a whole, it is improbable that the alleged sexual misconduct occurred.

    
    

    CONCLUSIONS OF LAW

    
    

15. Under Section 458.331(2), Fla. Stat. (1993), the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for the following pertinent violations set out in subsection (1):

    
    

    (j) Exercising influence within a physician-patient 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 physician.

    * * *

    (x) Violating any provision of this Chapter . . ..

    
    

    As to subsection (1)(x), Section 458.329, Fla. Stat. (1993), also prohibits sexual misconduct in the practice of medicine.

    
    

16. In this case, the burden is on the ACHA to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The burden of proof was not met in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order finding the Respondent not guilty of the charges in the Administrative Complaint.

RECOMMENDED this 19th day of August, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 19th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5917

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2. Rejected as not proven and as contrary to facts found in that it was not an annual gynecological examination. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

3.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

9.-11. Rejected as not proven.

1. Accepted but subordinate and unnecessary.

2. Rejected as not proven that the procedure was applicable for the patient's examination.

14.-18. Rejected as not proven that the alleged misconduct occurred. (Also, not proven that a nurse entered the room; besides, subordinate and unnecessary.)

1. Accepted that the door was pulled shut, or almost shut, but subordinate and unnecessary. Rejected that the door was shut tight or locked or otherwise secure from being opened without advance warning, or that it was

   sound-proof.

2. Rejected as not proven that the Respondent conducted a breast examination; otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

21.-28. Rejected as not proven.

1. Accepted and incorporated.

2. Accepted but subordinate and unnecessary.

31.-33. Rejected as not proven. (Accepted that the patient and her boyfriend might have discussed the allegations the patient planned to make, but subordinate and unnecessary.)

1. Accepted but subordinate and unnecessary.

2. Rejected as not proven.

36.-37. Accepted but subordinate and unnecessary.

1. Conclusion of law.

2. Rejected as not proven and as conclusion of law.

3. Rejected as not proven.

41.-44. Rejected as not proven and as conclusion of law.

Respondent's Proposed Findings of Fact.

1.-21. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Hugh R. Brown, Esquire Staff Attorney

Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Grover C. Freeman, Esquire Freeman, Hunter & Malloy Enterprise Plaza, Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

Dr. Marm Harris

Executive Director, Board of Medicine Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Sam Power, Esquire Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Medicine 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 consult with the Board of Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-005917

Orders for Case No: 93-005917