vs.
Respondent.
Case No. 20-4079PL
Pursuant to notice, a final hearing in this case was conducted before Administrative Law Judge Mary Li Creasy by Zoom conference on November 2 through 4, 2020.
For Petitioner: Amanda M. Godbey, Esquire
Ryan Sandy, Assistant General Counsel John A. Wilson, Esquire
Department of Health Prosecution Services Unit 4052 Bald Cypress Way, C-65 Tallahassee, Florida 32399
Louise Wilhite-St. Laurent, General Counsel Department of Health
For Respondent: Robert N. Nicholson, Esquire
Edward Donald Reagan, Esquire Edward D. Reagan, P.A.
Whether Respondent engaged in sexual misconduct in the practice of a healthcare profession, as defined in section 456.063(1), Florida Statutes (2019), and/or Florida Administrative Code Rule 64B8-9.008 (2019), with T.B. on or about February 25, 2020; and, if so, what discipline should be imposed.
On July 31, 2020, the Department of Health (Petitioner or Department), issued an Administrative Complaint (Complaint) against Saeed Akhtar Khan, M.D. (Respondent). The Complaint charged Respondent with violating section 458.331(1)(nn), Florida Statutes (2019), by engaging in sexual misconduct with a patient in violation of section 456.072(1)(v), and/or
rule 64B8-9.008. Respondent disputed material facts alleged in the Complaint and requested an administrative hearing.
The case was forwarded to the Division of Administrative Hearings (DOAH) and a final hearing was held as scheduled on November 2 through 4, 2020. Prior to the final hearing, the parties filed a Joint Pre-Hearing Stipulation, in which they stipulated to certain facts. To the extent relevant, the parties’ stipulated facts have been incorporated in the findings below.
At the hearing, Petitioner presented the testimony of T.B., the accuser in this case. Petitioner also presented the testimony of Okeechobee County
Sheriff’s Office Detective J. Gonzalez; former patient M.T.;1 and Gateway
1 Respondent objected to the admission of the testimony of former patient M.T. as immaterial and not permitted by sections 90.404 and 90.403, Florida Rules of Evidence. Respondent’s objections were overruled, and the testimony was received. However, M.T.’s testimony was
Medical Group (Gateway Medical) employees Amanda Curtis and Shannon Lawrence. Petitioner’s Exhibits 1 through 8 were admitted into evidence.
Respondent presented the testimony of Gateway Medical employees Amanda Curtis, Shannon Lawrence, Miranda Chandler, Kristina Chapman, and Kora Chapman. Respondent also presented the testimony of Department of Health Investigator Kathleen Healy-Baez and Dr. Leland Heller.
Respondent did not testify. Respondent’s Exhibits 1, 2, 4 through 8,
9 (excluding pages 1 and 2), 10, 12 through 14, 16 through 20, 23, 24, and 30 were admitted into evidence.
The five-volume final hearing Transcript was filed on December 14, 2020. Respondent requested, and was granted, an extension of time for the parties to file proposed recommended orders. Both parties timely filed proposed recommended orders, which were considered in the drafting of this Recommended Order. Unless otherwise indicated, citations to the Florida Statutes refer to the version in effect during the time that the violation was allegedly committed.
Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43, and chapters 456 and 458, Florida Statutes.
At all times material to this proceeding, Respondent was a licensed medical doctor in the State of Florida, having been issued license number ME77602. Respondent’s address of record with the Department is 2257 Highway 441 North, Suite A, Okeechobee, Florida 34972.
not ultimately deemed relevant or material to the resolution of the facts in dispute in this matter.
At all times material to this Order, Respondent owned and operated Saeed Khan, P.A., a medical practice within the Gateway Medical. Gateway Medical is comprised of ten professional associations which include a professional association owned by Tahir Naeem, M.D. (Dr. Naeem).
The Relationship Between Respondent and T.B
On February 25, 2020, T.B., a long-time patient of Respondent’s medical practice, presented to Respondent at his office, where Respondent engaged T.B. in sexual activity.
T.B. had been Respondent’s patient since first seeing him as her primary care physician in 2005, and T.B. remained Respondent’s patient for “approximately 13 or 14 years.” T.B. ceased her patient-physician relationship with Respondent in April 2019.
T.B. is a medically complex patient and over the course of their 14-year relationship, Respondent treated her for numerous medical issues including, but not limited to the following: Chiari 1 malformation, Graves' disease, hyperthyroidism, fibromyalgia, post-traumatic stress disorder, attention- deficit/hyperactive disorder, breast calcifications, depression, anxiety, and failed neck surgery fusion.
However, although their relationship was friendly, T.B. and Respondent’s “friendship” remained within the confines of the physician- patient relationship. In the 14 years that Respondent treated T.B., the two never socialized outside of Respondent’s medical office and the majority of their conversations revolved around T.B. seeking advice about her various
medical issues. T.B. occasionally texted Respondent to seek medical advice for her health concerns, to request referrals to specialists, and to schedule medical appointments with Respondent.
Over the course of their professional relationship, T.B. often discussed sensitive and personal subjects with Respondent, including her marital strife. Conversations of this personal nature were important and pertinent
components of T.B.’s medical care, especially since she was being treated for
depression and anxiety.
T.B. sent text messages to a friend in March 2019 that she personally disliked Respondent and no longer wanted him as her physician. T.B. texted her friend on March 29, 2019, that she doesn’t “like Khan anymore,” that Respondent “makes her feel stupid,” and that “he sucks.” T.B. later texted the same friend that “I hate my primary” (referring to Respondent), and “I
freakin’ hate Khan and will dump his ass as soon as I get through all this.”
In April 2019, Respondent and T.B. had a disagreement over T.B.’s medical care. On April 12, 2019, T.B. reported to Respondent that she was concerned about her thyroid. Respondent’s office mistakenly ordered a gallbladder test instead of a thyroid diagnostic test for T.B.
T.B. was irate with Respondent for not realizing what she perceived to be a grievous error. T.B. vented about her frustration with Respondent with Brenda Adams (Ms. Adams), a family friend and Gateway Medical employee.
T.B. informed members of Respondent’s staff that she was leaving the
practice and would be seeking care with another physician.
T.B. thereafter transferred her medical care from Respondent to another primary care physician with Gateway Medical, Dr. Naeem, in
April 2019. T.B. treated with Dr. Naeem on two occasions between April and June 2019.
T.B. subsequently transferred her care from Dr. Naeem to another primary care physician, Dr. Leland Heller, beginning in June 2019.
At the time of T.B terminating her care with Respondent,
Respondent’s office did not send a letter notifying T.B that she was no longer a patient nor was this documented in T.B.’s medical records. However, the evidence is clear and convincing that neither T.B. nor Respondent considered her a patient of his practice after April 2019.
It is Respondent’s standard policy and practice not to readmit a patient once they have left the practice. To be readmitted to the practice,
Respondent has to personally approve the readmission. T.B. was never
readmitted to Respondent’s practice.
T.B. had no contact with Respondent between April 16, 2019, and September 2019. During that time, T.B. had medical appointments with Dr. Naeem and four with Dr. Heller. By September 2019, T.B. was overwhelmed and frustrated with the medical care she received from the other physicians. She had also come to the realization that the error that Respondent’s office had made in April 2019 was less egregious than she initially believed.
On September 12, 2019, T.B. contacted Respondent by Facebook
instant message and requested a meeting with him “to clear the air” regarding the circumstances of her departure from the practice, and to “see if I’m still your patient.” Respondent did not respond to T.B.’s Facebook message.
T.B. contacted Respondent again on September 23, 2019, this time by text message to his personal cell phone, stating that she felt “they have left off on the wrong foot in our last conversation,” and asking whether Respondent would be willing to “meet” with her. T.B. acknowledged in her text message that she was not supposed to be contacting Respondent on his personal cell phone. Respondent agreed to meet T.B. at his office the next day.
On September 24, 2019, T.B. met with Respondent in Respondent’s personal office and discussed her thyroid issues, the treatment recommended by her endocrinologist, and her pending separation from her husband.
At the meeting, T.B. requested to return to the practice as a patient,
and Respondent replied that “I think it might be better if we remain friends.”
Respondent’s refusal to take T.B. back as a patient was documented by T.B. in text messages with a friend. T.B. texted with a friend on September 24, 2019, regarding her meeting with Respondent, stating in the text message, “Just finished. Everything went well. He won’t take me back as
a patient, which is probably best.” When asked by her friend why not, T.B. replied, “He just says I’d always have a doubt about the care bc I felt he missed the thyroid thing.”
T.B. was not reestablished as a patient in the medical records system
of Respondent’s practice on September 24, 2019, and an appointment that
had been placed in the calendar of the practice was listed as “cancelled.” T.B. did not seek further medical care from Respondent.
The Events Giving Rise to This Disciplinary Action
T.B. and Respondent had no contact with each other between September 24, 2019, and February 2020.
T.B. suffered with a pinched nerve in her spinal cord that caused pain and numbness down her right arm and shoulder. T.B. attempted to alleviate this issue with an anterior cervical decompression fusion (ACDF) surgery in 2018; however, the surgery was unsuccessful and T.B. was suffering from the same symptoms. T.B. scheduled a second ACDF surgery to occur on March 12, 2020. The scheduled surgery was different from her first, and T.B. was anxious about the decision of whether to go through with the surgery.
On February 19, 2020, T.B. posted on Facebook that she was going to have a 75-minute MRI done at the University of Miami Health System. On the same day, Respondent commented under that post, “Good Luck,” and sent
T.B. a private Facebook message that stated, “Good Luck Thinking of you. I am always available as a sounding board.” T.B. responded to Respondent’s message stating, “Thank you! I’d love to come in and run it all by you. Just let me know when. Failed fusion and scar tissue hitting a nerve the doctor believes….” T.B. was aware that Respondent had previously undergone the same surgery.
On February 24, 2020, T.B. was served with divorce papers. Following receipt of her divorce papers, T.B. initiated contact with Respondent on February 25, 2020, and asked to meet with him that day. Respondent replied asking if she was OK, and T.B. responded, “Not really. Having the surgery
redone. And was served with divorce papers yesterday and lost my job
because of disability. Wanted your ‘older and wiser advice.’”
They agreed to meet that same day. T.B. went to Respondent’s office and met with Respondent at approximately 4:00 p.m. Respondent’s staff directed T.B. to meet Respondent in his private medical office. When she arrived, the receptionist told her that she did not need to sign in, and T.B. did not sign in as a patient. When asked by the receptionist why she was coming to the office that day, T.B. responded that she was not there as a patient, but to meet with Dr. Khan.
Respondent did not medically examine T.B. on February 25, 2020. Significantly, T.B did not have her vital signs taken by a nurse or medical assistant. T.B. did not complete any new or existing patient paperwork. Respondent did not render a diagnosis on February 25, 2020, nor did Respondent render any treatment or prescribe T.B. any medication, nor did he make any referrals for medical care. T.B. did not bring any medical records with her to the February 25, 2020, meeting, and Respondent did not review any medical records during the meeting.
T.B. met with Respondent in his personal office space at the practice rather than an examination room. Upon T.B.’s arrival, Respondent dismissed his staff and closed the door to the office, leaving him alone with T.B.
After discussing T.B.’s impending divorce, Respondent approached
T.B. and asked her to scratch his back, to which T.B. complied. Respondent
then placed his hands on T.B.’s and then began to massage her shoulders.
T.B. attempted to leave the office by feigning an excuse to leave, however, Respondent blocked her exit, pulled down her blouse, placed his mouth on her breast, and sucked on her nipple. Respondent then pulled down the other side of T.B.’s blouse, placed his mouth on her other breast, and sucked on her nipple. As T.B. broke away and exited the practice, Respondent told her that they would be sleeping together in the future.
Subsequent Law Enforcement Investigation
T.B. did not initiate a complaint against Respondent with law enforcement immediately after the incident because she underwent neck surgery on March 12, 2020. The recovery for that surgery involved 12 weeks in a neck brace and a difficult and painful recovery. As soon as T.B. recovered, she immediately reported Respondent’s conduct to law enforcement, initiating an investigation, which resulted in Respondent’s arrest. T.B. also hired a civil attorney to initiate a civil claim against Respondent.
Respondent did not testify at hearing and asserted his Fifth Amendment privilege against self-incrimination in his deposition. Accordingly, T.B.’s testimony regarding the heinous sexual assault of February 25, 2020, is credited.
However, Respondent’s actions of February 25, 2020, as described by T.B., did not re-establish the physician-patient relationship. The meeting between T.B. and Respondent on February 25, 2020, was that of two acquaintances. It was not intended by either of them as a physician-patient encounter.
During her final hearing testimony, T.B. claimed that during the February 25, 2020, meeting, she and Respondent discussed her upcoming surgery. However, this testimony is inconsistent with T.B.’s prior sworn
testimony and prior sworn statements in this matter. It is also inconsistent with T.B.’s narrative description of the meeting with Respondent in this matter. Her testimony in this regard is, therefore, deemed not credible.
During T.B.’s discovery deposition in this case, T.B. specifically denied that she discussed her impending surgery with Respondent during the February 25, 2020, meeting. Additionally, in T.B.’s prior sworn written
statement to Deputy Reno of the Okeechobee County Sheriff’s Office, she made no mention of discussing her upcoming surgery with Respondent prior to the physical contact between Respondent and her. Instead, her narrative of
the event was that she and Respondent only discussed her impending divorce and marital assets prior to Respondent asking her to scratch his back.
This version is consistent with the fact that T.B. brought her divorce papers with her to the meeting with Respondent and did not bring any medical records. It is also consistent with the fact that T.B. and Respondent had discussed her impending divorce at the September 24, 2019, meeting.
T.B. also referred to Respondent as her “previous primary doctor” in her
statement to Deputy Reno.
Further, T.B. told Detective Gonzalez that when she walked into Respondent’s office she was in tears because of the divorce, and that the first thing she told Respondent was that she had been served with the divorce papers. During her May 6, 2020, interview with Detective Gonzalez., T.B.
stated she was not a patient of Respondent’s on February 25, 2020. T.B. told Detective Gonzalez that she had severed the physician-patient relationship with Respondent based upon a prior misdiagnosis by Respondent’s practice, and that she was seeing Respondent as a “friend” on February 25, 2020.
Even if T.B.’s testimony that she discussed her already planned surgery with Respondent was credited, her testimony was that Respondent told her nothing more than that the surgery was “worth a try” and “why not” have it. Such advice does not rise to the level of or constitute a medical diagnosis, treatment, operation, or prescription. See § 458.305(3), Fla. Stat. (2020). At most, T.B.’s testimony established that T.B. asked Respondent as a “friend” and a person who had previously had a similar surgery whether he thought she should proceed with the surgery. The fact Respondent was a
physician, without more, does not convert this conversation between “friends”
into the practice of medicine or create a physician-patient encounter.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat. (2020).
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm’n, 281 So. 2d 487, 497 (Fla. 1973). Petitioner must therefore prove the charges against Respondent by clear and convincing evidence. Fox v. Dep’t of Health, 994 So. 2d 416, 418 (Fla 1st DCA 2008)(Citing Dep’t of Banking & Fin. v. Osborne, Stern, & Co., 670 So. 2d 932 (Fla. 1996)); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As stated by the Florida Supreme Court:
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 witnesses 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met where the evidence is in conflict; however, "it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).
Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep't of Bus. & Prof'l Reg., Bd. of Med., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep't of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008). "No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor
of the licensee." McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984)
The allegations of fact set forth in the Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005)(administrative complaint charged physician with a failure to create medical records; proof of a failure to retain medical records cannot support a finding of guilt); see also Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Furthermore, due process prohibits the Department from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
Petitioner charged Respondent under section 456.072(1)(v), which provides, in relevant part:
Engaging or attempting to engage in sexual misconduct as defined and prohibited in s. 456.063(1).
Section 456.063(1) provides, in relevant part:
Sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited.
Petitioner specifically charged that Respondent engaged in sexual misconduct by engaging in physical sexual activity with “patient T.B.,” who was alleged to be a then patient of Respondent.
After close of discovery and two business days before the start of the formal hearing, when preparing the Joint Pre-Hearing Stipulation, Petitioner for the first time sought to insert a new theory of prosecution into this proceeding that was not previously charged or presented to the probable cause panel of the Board of Medicine.
Specifically, Petitioner contends in its position included in the Joint Pre-hearing Stipulation that, “Respondent engaged in sexual misconduct with T.B. on or about February 25, 2020, within a patient-physician relationship.” Petitioner further added, “in the alternative, if the physician- patient relationship is found to be terminated, Respondent engaged in sexual misconduct as a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.”
Allegations that T.B. was a former patient of Respondent on
February 25, 2020, were not charged in the Complaint filed on July 31, 2020, nor alleged in the Order of Emergency Restriction entered on July 15, 2020. The Board of Medicine’s Probable Cause Panel did not find probable cause that Respondent engaged in sexual misconduct with a former patient through exploitation of trust, knowledge, influence, or emotions, derived from the professional relationship. Respondent cannot be subject to discipline for such uncharged conduct.2
The Complaint Paragraph 17 also references rule 64B8-9.008 which “prohibits sexual misconduct 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.” See Fla. Admin Code R. 64B8-9.008(2)(a).
2 On October 30, 2020, Respondent filed a motion in limine to preclude Petitioner from arguing its alternative theory of prosecution and limit the hearing evidence, testimony, and argument solely to the conduct actually charged in the Complaint. The motion was considered after oral argument from both parties on November 2, 2020, and granted. Because the matter was set for final hearing in less than two days, Petitioner’s oral motion to amend the Complaint to add its new theory of the case was denied by the undersigned.
Notably absent from the reference in the Complaint to rule 64B8-9.008
was any description of T.B. as a “former patient” or recitation to the
remaining language of that rule which specifically addresses “sexual behavior
or involvement with a patient not actively receiving treatment from the
physician.”
In fact, rule 64B8-9.008(4) specifies that the determination of when a person is a patient for purposes of this rule is “made on a case by case basis” with consideration given to the nature, extent, and context of the professional relationship between the individual and the physician. Subsection (5) provides a variety of factors to be considered. The Complaint makes no reference to subsections (4) or (5) and provides no facts which would put Respondent on notice that he was being charged with a violation of any portion of the rule other than subsection 2(a), which is confined to an existing patient. The Complaint fails to allege that “the sexual contact is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.” See Fla. Admin Code R. 64B8-9.008(6).
Both parties acknowledge in their proposed recommended orders that the sole issue of material fact that remained for final hearing was whether
T.B. was an existing patient of Respondent on the date of the sexual battery.
For reasons stated in the Findings of Fact above, it was not clearly or convincingly shown that Respondent was T.B.’s physician on February 25, 2020, or that Respondent sought to use a physician-patient relationship
to engage in sexual misconduct with a patient in violation of section 456.072(1)(v), as alleged in the Complaint.
T.B. was a former patient who had voluntarily left Respondent’s practice in April 2019, when she transferred her care to other physicians. There was no contact between them after April 2019, and none occurred until
T.B. initiated contact with Respondent in September 2019. As shown by the documentation and testimony, T.B. sought to return to the practice in September 2019, but Respondent rejected her request to return to the
practice as a patient. After September 2019, T.B. and Respondent had no contact with each other until February 2020, when Respondent placed a
public comment to T.B.’s Facebook post wishing her good luck with a medical procedure. T.B. tried to initiate contact with Respondent following his public comment, but Respondent did not respond to this attempt at contact. When
T.B. sought out Respondent following her receipt of divorce papers, Respondent agreed to meet with her and as T.B. said in her own words, they met as “friends.”
The evidence is clear that T.B. did not then consider Respondent to be her physician and she was not seeking his advice as a physician. The evidence is equally clear that nothing occurred prior to or during the February 25, 2020, meeting between T.B. and Respondent to reestablish a physician-patient relationship. Although the conduct engaged in by Respondent was unquestionably deplorable, Respondent’s license as a physician was not relevant to their meeting. He did not seek to use a physician-patient relationship to engage or attempt to engage T.B. in sexual activity.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Administrative Complaint.
DONE AND ENTERED this 1st day of March, 2021, in Tallahassee, Leon County, Florida.
Division of Administrative Hearings this 1st day of March, 2021.
Amanda M. Godbey, Esquire
Ryan Sandy, Assistant General Counsel John A. Wilson, Esquire
Edward Donald Reagan, Esquire Edward D Reagan, P.A.
George Kellen Brew, Esquire Law Office of George K. Brew
Louise Wilhite-St. Laurent General Counsel Department of Health
Robert N. Nicholson, Esquire Nicholson & Eastin, LLP Suite 301
Paul A. Vazquez, J.D., Executive Director Department of Health, Board of Medicine 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253
All parties have the right to submit written 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.
