Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Jimmy Franklin Pinion, L.P.N., holds License No. 42845-1, as a Licensed Practical Nurse. Respondent was employed as a private duty nurse caring for Elsie B. Allen, a ninety-three-year-old woman, during the period April, 1978, through September 11, 1978, when he was dismissed for alleged physical abuse of Mrs. Allen and for alleged possession of controlled substances, to-wit: Valium and marijuana, on or about August 15, 1978. The Complaint alleges that on or about September 9, 1978, Respondent slapped Mrs. Allen twice on her forehead, resulting in bruises to the forehead. Concluding the Complaint alleges that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes Subsections 464.21(1)(b) and (d). Anna Marie Snyder, an L.P.N. in Florida since approximately 1971, testified and expressed her familiarity with the Respondent since his employment with Mrs. Allen. Snyder testified that Mrs. Allen employed three round the clock nurses, one of whom was the Respondent, Jimmy Franklin Pinion. Ms. Snyder testified that she occasionally stayed at Mrs. Allen's home and that while so doing, she used a back bedroom which the Respondent also used occasionally. She testified that a problem arose with respect to a suspicion that some brownies had been placed in the refrigerator which were laced with marijuana. According to Ms. Snyder, the Respondent made the brownies and brought them to Mrs. Allen's home. Ms. Snyder also testified that she discovered marijuana in the back bedroom and that she brought the matter of the marijuana-laced brownies to the attention of Mrs. Allen's two nephews. According to Ms. Snyder, Respondent stressed the fact that Mrs. Allen had to be taken care of "firmly." On cross- examination, Ms. Snyder testified that the Respondent admitted that the brownies which were in a bag in the back bedroom belonged to him and that Respondent admitted that he had struck Mrs. Allen with a cane. Ms. Snyder's testimony is that bags of marijuana were found in a closed used by the Respondent, wherein crocheting and other personal items belonging to Respondent were located. She testified that vials of other drugs were confiscated by Mrs. Allen's attorney on or about September 11, 1978. Lorraine Clark Ruskin, an L.P.N. licensed for more than twenty-eight years, was also employed by Mrs. Allen as a private duty nurse. Ms. Ruskin testified that on August 15, 1978, she, along with Ms. Snyder, visited Respondent's rear bedroom where Respondent showed her marijuana in the rear bedroom. Approximately April 28, 1978, Ms. Ruskin had some photos taken which were introduced into evidence over the objections of Respondent's counsel. (Petitioner's Exhibits 1 through 5.) According to Ms. Ruskin, Respondent and a friend of his allegedly hit Mrs. Allen on her forehead, causing bruises, on or about September 9, 1978. Attorneys Carl Hiassen and G. Ware Cornell, Jr., visited the Allen's home on the morning of September 11, 1978, and dismissed the Respondent from Mrs. Allen's employ for alleged patient abuse and possession of drugs. Ms. Ruskin testified that she took Mrs. Allen to a psychiatrist who diagnosed Mrs. Allen as being incompetent to handle her own affairs due to an organic brain syndrome caused by generalized arterioscleriotic cardiovascular disease. (Respondent's Exhibit 2.) She testified that Mrs. Allen had a history of falling and that the subject incident, which gave rise to the bruises, occurred approximately September 10, 1978. She testified that the Respondent was terminated on September 11, 1978, when bruises were found on Mrs. Allen's forehead. G. Ware Cornell, Jr., an associate of Attorney Carl Hiassen, visited Mrs. Allen's home on September 11, 1978, for the purpose of terminating the Respondent. The reasons given for the termination were "unsatisfactory performance and suggestion of drug possession." Attorney Cornell testified that he visited the back bedroom where the Respondent stayed while at Mrs. Allen's home and discovered what appeared to be Valium, marijuana and other drugs. Attorney Cornell testified that when the Respondent was terminated, he was told to return all keys to the Allen's home that were in his possession. Carl A. Hiassen, Esquire, has been representing Mrs. Allen since World War II and visited the Allen's residence on September 11, 1978, for the express purpose of preparing a termination notice for the Respondent. He testified that he discovered drugs in a bedroom which he was told was being occupied by the Respondent. He testified that he made a list of the substances which he considered to be drugs and gave it to Mrs. Markowitz, Petitioner's representative in the Fort Lauderdale area. Attorney Hiassen testified that he retained custody of the drugs until approximately January of 1979, at which time there were given to Mrs. Markowitz. Mrs. Markowitz later turned the substances over to the Broward County Sheriff's office for chemical analysis. According to Mrs. Markowitz, the substances were analyzed by John T. Pennie, a forensic chemist for the Broward County Sheriff's office Crime Laboratory. Neither the substances nor the person performing the analysis appeared at the hearing to testify with respect to the identify of the substances. Respondent appeared at the hearing and testified that he had a prescription for Valium and, to the best of his recollection, he only had one or two tablets remaining from a prescription which he had filled sometime ago. Respondent denied having in his possession marijuana or any other controlled substance prescribed by Chapter 893, Florida Statutes. Respondent testified that Mrs. Allen had a problem signing blank checks for a Mrs. Carr who had taken approximately $40,000 from Mrs. Allen. Additionally, Respondent testified that Mrs. Allen never called him by his name. He testified that he contacted Mr. Hiassen's office to report the fact that Mrs. Allen was signing blank checks and the funds were diverted for the purposes for which they were intended by Mrs. Allen. Mrs. Allen did not testify at the hearing allegedly due to her physical condition.
Conclusions Due to the hearsay nature of the identity of the substances analyzed by the Crime Laboratory, the undersigned is unable to conclude that the Respondent had possession of drugs or other prescribed substances in violation of Chapter 893, Florida Statutes, as alleged. Among other things, there were problems with the chain of custody from the Allen's residence to the Crime Laboratory and the fact that at least one other nurse shared the same room in which it is alleged that the Respondent allegedly stored Valium and marijuana. Finally, the Respondent emphatically denied that he struck Mrs. Allen and the only testimony to refute this denial was heresay and thus falls within the proscriptions of Section 120.58, Florida Statutes. In view thereof, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine B. Johnson, R.N. Department of Professional Regulation Board of Nursing Suite 504, Richard P. Daniel State Office Building 111 East Coast Line Drive Jacksonville, Florida 32202 Julius Finegold, Esq. 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Roger D. Haagenson, Esq. Suite 601, Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301
Conclusions Having reviewed the Administrative Complaints and the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider, Ana Home Care, Inc., pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Provider. (Ex. 1-A; Ex. 1-B; 1-C; Ex. 1-D; and Ex. 1-E). The Agency issued the attached Notice of Intent to Deny and Election of Rights form (Ex. 1-F). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The assisted living facility license of Ana Home Care, Inc. is REVOKED. All residents shall be removed within 30 days from the entry of this Final Order. In accordance with Florida law, the Provider is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Provider is advised of Section 408.810, Florida Statutes. In accordance with Florida law, the Provider is responsible for any refunds that may have to be made to the clients. The Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 3. An administrative fine and survey fee in the total amount of $88,000.00 is imposed against the Provider, Ana Home Care, Inc., but the collection of the fine is STAYED unless the Provider applies for an assisted living facility license at which time the $88,000.00 will become due and owing. ORDERED at Tallahassee, Florida, on this _/ A day of Jane ‘i — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct sob of this Final Order was served on the below-named persons by the method designated on this_/7 “day of (eat Wa , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Lourdes A. Naranjo, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Shaddrick Haston, Unit Manager | Revenue Management Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo Davis, Field Office Manager Medicaid Accounts Receivable Areas 9, 10 and 11 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Lawrence E. Besser, Esquire Medicaid Contract Management Samek & Besser Agency for Health Care Administration 1200 Brickell Avenue - Suite 1950 (Electronic Mail) Miami, Florida 33131 (U.S. Mail) John D. C. Newton, IT Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated: Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or 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; Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count: Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy". Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The underlying administrative proceeding was initiated by the Respondent, a state agency. Petitioner was the prevailing party in the administrative proceeding material to this matter. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of medicine, in violation of section 458.331(1)(j), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department and Board of Medicine are charged with regulating the practice of medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Dr. Pena-Sanchez is licensed to practice medicine in areas of critical need within the State of Florida, having been issued license number ACN 232. Dr. Pena-Sanchez went to medical school in Colombia, was first licensed in Puerto Rico, and has been licensed to practice medicine in Florida in areas of critical need since 2006. Dr. Pena-Sanchez is subject to the jurisdiction of the Board of Medicine. He worked for the Florida Department of Corrections in a St. Lucie Health Clinic from 2008 to 2010, and in a clinic in Okeechobee until June of 2012, when he joined FoundCare, a federally qualified health center, in West Palm Beach. In August of 2013, FoundCare instituted a Medical Provider Chaperone Policy. The policy provided, among other things, that any clinical provider conducting a physical examination of a patient of the opposite sex had to have a chaperone present during the exam and that the medical assistant had to be present until the physical examination was complete. Dr. Bonaparte, Dr. Pena-Sanchez's supervising physician, counseled him on the policy. Over a period of approximately five years, Patient H.P.-B., a 47-year-old female, saw Dr. Pena-Sanchez for treatment at FoundCare. In early 2017, FoundCare issued a standing order to staff requiring routine testing for HIV and hepatitis C under Center for Disease Control guidelines in order to comply with the terms of a focus grant FoundCare had received through the Gilead Foundation. On April 24, 2017, Patient H.P.-B. presented at FoundCare for a well-woman examination, including a PAP smear and other routine testing for laboratory analysis. Patient H.P.-B. had specifically requested that Dr. Pena-Sanchez conduct these tests, even though usual FoundCare practice was to have a female doctor conduct them. She testified that she requested him because he had been her doctor for several years, she believed he was a good doctor, and she trusted him. Dr. Pena-Sanchez conducted the tests in the presence of Ms. Yvette Ortiz, his medical assistant. Patient H.P.-B. was scheduled for a follow-up appointment a few weeks later. On or about May 15, 2017, Patient H.P.-B. presented to Dr. Pena-Sanchez at a scheduled appointment to discuss the blood work and procedure results. Ms. Ortiz checked H.P.-B.'s vital signs and then left the room. Then Dr. Pena-Sanchez came in and informed Patient H.P.-B. of the test results, telling her first that she was not HIV positive. This upset her, because she had not specifically authorized that test and believed Dr. Pena- Sanchez had no authority to conduct it. No one had informed Patient H.P.-B. that FoundCare had implemented the new policy requiring AIDS/HIV testing as part of a well-woman examination. During the appointment, Patient H.P.-B. informed Dr. Pena-Sanchez that she had pain in her side and requested that he examine the area. Patient H.P.-B. testified that at first, Dr. Pena-Sanchez did not respond and she had to ask him several times what he was going to do about her pain. Dr. Pena-Sanchez, sitting on a stool, then asked Patient H.P.-B. to stand in front of him and indicate the location of the pain. Patient H.P.-B. stood in front of Dr. Pena-Sanchez and indicated her side. Patient H.P.-B. testified that she was facing away from Dr. Pena-Sanchez, as he had directed, when he reached up and grabbed her above the hips on each side and pulled her down to sit on his lap. She testified that he began rubbing her back and that she tried to get up, but he pulled her back down. She said he then moved his hands around and started to rub her breasts, so she spanked his hands, jumped up, and asked him where the nurse was. She said that she then went back to sit in her chair. She testified that he came over to her, unzipped his pants, pulled out his penis, and told her that she was going to have sex with him or give him oral sex. She said that she told him no, but that Dr. Pena-Sanchez took her hand, made her touch his penis, and asked her if his penis was big enough, or something similar. She said she clearly saw the color of his boxers, which were navy blue with white, black, and red or maroon colored designs. She testified that she asked for his phone number twice, wanting to later call his wife, but he would not give it to her. She testified he then suddenly stopped his behavior, went back to his chair, and acted as if nothing had happened, saying he was going to order refills on her prescriptions. Patient H.P.-B. testified that she left without reporting the incident to anyone at FoundCare, but called her sister and told her what had happened as soon as she got to her car. She said she went to her job as a home health care aide, where the wife of her patient told her she needed to report the incident to the Palm Beach County Division of Victim Services hotline, which she did the next morning. She reported the incident to Detective Carpentier at the Palm Springs Police Department that same day, but did not write a statement, preferring to be recorded. About a week later, she returned to the police station to provide a sworn taped statement to Detectives Milow and Hudson. She was referred by the police for counseling and began talking with Ms. Gonzalez, a therapist at the Palm Beach County Division of Victim Services, on June 15, 2017. After the Palm Springs Police Department found no probable cause for criminal charges, Patient H.P.-B. contacted a civil attorney, who later sent a letter to FoundCare asking them to preserve evidence. She filed a written statement with the Department on September 1, 2017, and was interviewed later that month by Investigator Cox. When Patient H.P.-B. told her story to these various people, she was not always consistent.1/ It is not easy to communicate with Patient H.P.-B. Even during the final hearing, questions addressed to her needed to be repeated and answers she gave were sometimes unclear. Some inconsistencies involved minor details, others more substantial points. Patient H.P.-B. was clearly confused as to some of the details about which she was absolutely adamant at hearing, including the date of her examination prior to the lab tests. Detective Milow recorded that she told him that the appointment was the week of May 8. She repeatedly insisted at hearing that the date was May 2. FoundCare records indicate that it was in fact on April 24. While a mistake as to the date something occurred is not in itself either unusual or significant, her unshakeable conviction on the point detracts from the weight that her own confidence might otherwise have given to other portions of her testimony about which she was equally certain. After Patient H.P.-B.'s initial telephone call to the hotline and counseling service a day after the examination, Ms. Earlene Boone wrote that Patient H.P.-B. reported that she had asked Dr. Pena-Sanchez to examine her left side. Detective Milow's report also said she had experienced pain on her left side. Investigator Cox wrote in his report that she told Dr. Pena-Sanchez that the pain was on her right side. In her testimony at hearing, she was absolutely sure that the pain was on her right side and that she never told Ms. Boone or anyone else otherwise. In her initial intake assessment for counseling, Patient H.P.-B. told Ms. Gonzalez that Dr. Pena-Sanchez "pulled down his pants" and then pulled out his penis. At hearing, she testified that he unzipped his pants to pull out his penis. Patient H.P.-B. told Detective Milow that she could not get the incident out of her mind and kept seeing his boxers and his penis, and told Ms. Gonzalez that she kept having "visions" of his penis and boxers. Later, however, she could not tell Investigator Cox if Dr. Pena-Sanchez was circumcised or not, saying, "I didn't see it [his penis] that good." Patient H.P.-B. told Ms. Gonzalez that when the incident was over, Dr. Pena-Sanchez said, "I'm done with you," and that a nurse walked in and that is when Dr. Pena-Sanchez suddenly acted like nothing had happened. But Patient H.P.-B. never again said that anyone came into the room in her report to Detective Milow or at hearing. Ms. Ortiz testified that she did not go back into the room. Patient H.P.-B. told Investigator Cox that after the assault, "I ran out of the room." However, she testified at hearing that she stayed in the room after the assault because she wanted to make sure Dr. Pena-Sanchez was going to send her prescriptions. Patient H.P.-B. testified that she did not see anyone when she left the room and that she was crying. She reiterated later in her testimony that "tears was rolling." Ms. Ortiz testified that when Patient H.P.-B. left, she saw her in the hallway, that they made eye contact, and that Patient H.P.-B. was not crying and did not seem upset. Patient H.P.-B. told Detective Milow on May 25, 2017, ten days after the appointment, "When I left there I went to the pharmacy" to pick up her medications, including the pain pills, but the pharmacy informed her that no pain pills had been prescribed. Later, at hearing, Patient H.P.-B. testified that when she left FoundCare, she immediately called her sister. She testified that after that, she went to work and picked up the prescriptions the following day or the day after. Although Patient H.P.-B. was consistent in her allegations that Dr. Pena-Sanchez groped her, exposed himself, and demanded sex from her, these many discrepancies in Patient H.P.-B.'s testimony as to the details and timing of the surrounding events raise troublesome questions as to her testimony. While it may be only that Patient H.P.-B. was confused or no longer remembered the exact course of events, the lack of precision in her accounts significantly detracts from the weight of the evidence. Dr. Pena-Sanchez testified that before the date of the incident, Patient H.P.-B. had flirted with him and made him uncomfortable. He said that he told his assistant, Ms. Ortiz, about this and asked her to always be present when he was seeing Patient H.P.-B. He stated that Patient H.P.-B. had specifically requested he perform the PAP smear. He testified that on May 15, 2017, he gave Patient H.P.-B. the test results and that she complained of pain. He testified he did rub her back through her clothing for diagnostic purposes, but never touched her breasts. He said that she was standing the entire time and he never pulled her onto his lap. He said she asked for his cell phone number, but he would not give it to her. He denied ever exposing himself, asking her for sex, or making her touch his penis. He testified that he did not own any boxer shorts that were navy blue with black and white and red or maroon colored designs. He completely denied that he ever acted unprofessionally. The testimony of Dr. Pena-Sanchez was difficult to understand at times because he is not fluent in English. His testimony did not hold together well, and he was not completely credible. There were inconsistencies between the records of his interview by Detective Milow, his deposition testimony, and his testimony at hearing. One thread in the testimony of Dr. Pena-Sanchez involved flirtatious behavior on the part of Patient H.P.-B. In his interview with Detective Milow, and at hearing, Dr. Pena- Sanchez said that Patient H.P.-B. had been acting "in a sexual attitude" towards him prior to the laboratory tests appointment and that this made him uncomfortable. He testified that he told Ms. Ortiz about this and directed her always to be present whenever he was with Patient H.P.-B. Yet Ms. Ortiz had only the vaguest recollection of anything like this, and it is undisputed that Ms. Ortiz was not in the room during the results appointment. It seems curious, if Dr. Pena-Sanchez was concerned enough about this flirtation to identify Patient H.P.-B. to Ms. Ortiz and direct that she not leave them alone together, that when later asked by Detective Hudson, he initially claimed he did not even recognize Patient H.P.-B.'s name. After seeing Patient H.P.-B.'s picture, he described the results appointment in detail. He told Detective Milow that she was laughing and flirting with him when she asked for his phone number at the results appointment. Yet at hearing, he testified that she was not flirting with him at that time. While Dr. Pena-Sanchez maintained that he was completely professional throughout the results appointment, his testimony as to certain details varied. He indicated at one point that he was sitting on the stool during the examination, and, at another point, that he was standing when he examined Patient H.P.-B. At hearing (perhaps, as Petitioner suggests, aware of his prior statements), he testified he was both sitting and standing during the examination. At one point during the hearing, he testified that Patient H.P.-B. never lifted her shirt during the appointment, and said that if she had done so, he would have had to bring in a medical assistant, while later he indicated she did lift up her shirt, but that he palpated the area only through her clothing: "She lift, but I didn't – when – look -- and then go down and I touch over her -– the clothes." He testified consistently that he owned no paisley underwear, but indicated at one point that he had only gray and black, while at another point that he owned only gray and blue. Ms. Vasquez also testified that her husband owned only black and gray boxers. However, she fails to provide the impartial, independent perspective that sometimes serves to corroborate one side or the other between two completely irreconcilable versions of events. In the end, the color of the underwear simply becomes another parallel, but peripheral, dispute of fact between the parties, and provides no basis for resolution. There is no evidence that Dr. Pena-Sanchez has ever had discipline imposed on him in connection with his professional license in Florida or any other state. Revocation or suspension of Dr. Pena-Sanchez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Medicine, enter a final order dismissing the Administrative Complaint against Dr. Orly Pena-Sanchez. DONE AND ENTERED this 19th day of April, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2018.
