Findings Of Fact At all times relevant hereto Stanley Mark Dratler, M.D., was licensed by the Florida Board of Medical Examiners. He completed a four-year residency in obstetrics and gynecology before opening an office in Dade City, Florida, in 1981. He has taken the written portion of the examination for Board certification but, at the time of the hearing, was not aware of the result of that examination. Patient A visited Respondent July 22, 1982, for a Pap smear which was subsequently followed by a biopsy and hysterectomy on August 18, 1982. Following her release from the hospital, A reported to Respondent's office on August 30, 1982, for her first office checkup following surgery. At this visit Respondent performed a complete physical examination including a pelvic examination, asked A questions regarding her sex life at home, and told her he could show her things that would help her sex life. While examining her and discussing her sex life, Respondent applied a Q-tip to various areas outside the vagina and asked A to describe the sensations created thereby. Some two weeks later A developed back pains, called Respondent's office, and was told to come in the next day. Again, Respondent did a complete examination, including pelvic, used a Q-tip swab to stimulate areas outside the vagina, and told A she needed to know how to masturbate herself and not rely solely upon her husband. During this examination, conducted in an examining room containing only A and Respondent, Respondent masturbated A and had her masturbate herself. When A asked about her back, Respondent told her there was nothing wrong with her back. A denied she ever told Respondent she felt numb between her legs. In Respondent's testimony he confirmed the August 30 visit to his office by A but claimed she complained of feeling numb between the legs. When he put her in the stirrups for an examination, he found nothing wrong externally and performed a psycho-sexual examination which involved the stimulating of sensitive areas around the vagina with a cotton swab. He denies he ever masturbated A; that at her final visit on October 8, 1982, she again complained of numbness between her legs; his examination, which included the touching of sensitive areas, revealed nothing wrong; and when they returned to his office after the examination she made advances toward him. When he told A he treated her like all other patients, she got mad and stormed out of his office. In Exhibit 3, the patient records of A, the October 8 entry indicated only that A came in complaining of some swelling of the lower extremities, and no problem with that was foreseen. That entry states A would not need to return for another visit before six months unless some other problem developed. In view of the significant differences between the medical record and Respondent's testimony, the testimony of A is the more credible. Patient E visited Respondent's office September 29, 1982, complaining of bleeding. During this visit a Pap smear was taken, as was a sexual history of the patient. During the pelvic examination Respondent talked to E of areas to stimulate for sexual arousal. With his finger in her vagina, he started to masturbate her and told her she needed to have more orgasms. E acknowledges telling Respondent she had intercourse five or six time per week and was anxious to get pregnant. She does not recall telling Respondent she reached climax only once per week, that her last climax was one week before the visit, or that she experienced pain on deep thrusting. Following this examination, E was given an appointment to return in two weeks, which she cancelled and did not again return to Respondent's office. Respondent acknowledges that E visited his office as alleged and that he gave her a complete examination including a pelvic exam. He contends the questions regarding her sex history were necessary to ascertain any problems inhibiting E getting pregnant. He denies masturbating E or telling her that masturbation, stimulation, or sexually-oriented conversations were a necessary part of gynecological treatment. Patient B first visited Respondent November 4, 1982, complaining of a rash in the vaginal area. Respondent obtained a sexual history of B, who at the time of this visit was 16 years old. This revealed B's first sexual encounter occurred at age 12, that she had never experienced orgasm although she had been sexually active. During the pelvic examination Respondent applied a cotton swab to various areas around B's vagina and asked her if it felt good here or there. B was given a prescription for the rash and told to return a week later. When she returned on November 8, B again was undressed for an examination. Respondent performed what he described as a psycho- sexual examination on B during which he massaged her breasts, stimulated areas outside the vagina with a cotton swab, and inserted fingers in B's vagina. While this stimulation was going on, B had an orgasm. B had experienced some side effects with the first rash medication and on the second visit Respondent prescribed a different medicine. B returned for a third visit on November 22, 1982, which she testified was for blood tests only. However, there is some disparity in the testimony and it is more likely that the stimulation and orgasm occurred during the visit on November 22 rather than on November 8. On her final visit, December 6, 1982, B was again examined and testified Respondent fondled her breasts while masturbating her. At this time she had commenced her menstrual cycle but Respondent told her that was all right as he could still examine her. At this final visit Respondent prescribed birth control pills for B. Respondent acknowledges that B had visited his office four times as she testified and that he gave her the psycho- sexual examination because she had engaged in sex for four years without enjoying it. His questions regarding her sex life was to find out if the rash was related to a sexually transmitted disease. Respondent denies that he fondled B's breasts or masturbated her. Exhibit 4, the medical history of B, confirms the four visits but contains no reference to the psycho-sexual examination Respondent performed. A return visit scheduled for December 22, 1982, was never kept by B. The testimony of B is more credible than that of Respondent respecting his actions with B while she was being examined. Patricia Cherry worked in Respondent's office as a medical assistant and secretary from July 1982 until January 1983 when she quit to work at Humana Hospital in Dade City. Respondent asked Cherry if she would teach some of his patients how to masturbate themselves. She refused by stating she was not interested. Cherry was told by Respondent that he was conducting a survey on human sexuality and each patient would be a part of that survey. On one occasion Respondent asked Cherry to come in one weekend and he would give her Sodium Pentothal. She declined this also. On one occasion she witnessed Respondent administer intravenously a drug to a patient which Respondent said was Sodium Pentothal. Respondent told Cherry that a patient was coming in to be given Sodium Pentothal and had requested Cherry be present while the drug was administered. The patient came in as scheduled and was administered something intravenously while undressed from the waist down. After the IV started, the patient became unconscious on two occasions. During one period while the patient was awake Respondent asked the patient what she thought about oral sex. During one period the patient was unconscious Respondent asked Cherry if she would sexually stimulate the patient. Cherry said no. Once while a drug salesman was in the office Cherry asked Respondent if he would give her some of the new medicine the salesman was offering for pimples. Respondent told her she should have a pelvic examination to find out if she was through puberty because use of the drug by one not through puberty could cause undesirable side effects. Cherry was 22 to 23 years old at the time, had experienced her menstrual cycle for several years and she declined to be examined. By definition, girls are through puberty when they commence their menstrual cycles. Petitioner's two expert witnesses opined that hands-on masturbation of a patient constitutes treatment below generally prevailing standards; constitutes use of fraud, intimidation, or undue influence on a patient; constitutes exercising influence within a patient-physician relationship for purposes of engaging the patient in sexual activity; and constitutes deceptive, untrue or fraudulent representations in the practice of medicine, or employing a trick or scheme which fails to conform to the minimum acceptable standards of the profession. Also, the use of a swab around the genitalia of a female patient to sexually arouse the patient does not conform to the generally prevailing standards of treatment in the medical community. Nor does the use of Sodium Pentothal on a patient in an out-patient setting comply with the prevailing standards. Sodium Pentothal is a drug not normally administered in an out-patient setting where emergency backup procedures are unavailable. Very few gynecologists are sufficiently trained in the use of this drug to safely administer such a drug to a patient and particularly so in an out-patient setting. Research is normally done in an approved academic environment and not by individual practitioners. Respondent denied that he was engaged in the research he told Ms. Cherry he was conducting. After hearing the testimony of the witnesses, Dr. J. Kell Williams, a Board-certified gynecologist and faculty member at the University of South Florida, opined that Respondent's treatment of the three patients who testified was below acceptable medical standards, constituted use of physician- patient relationships for improper purposes, constituted fraud and deception in the practice of medicine and the employment of a trick or scheme, which fails to comply with the minimum acceptable standards of the medical profession. Patricia Cherry was never a patient of Respondent. As an employee she was requested to instruct female patients in masturbation, which she declined to do. Respondent also suggested to Cherry that she submit to Sodium Pentothal, which she also declined. Likewise, she declined to allow Respondent to do a complete examination which Respondent insisted was necessary before prescribing medication for her acne. Although Cherry was not a patient, the representations regarding a pelvic examination prior to prescribing medication for acne constitutes deceptive, untrue and fraudulent representations in the practice of medicine and fraudulent solicitation of a patient. Absent a medical reason to conduct a pelvic examination, Respondent's insisting on doing so prior to treatment of acne constitutes an attempt to engage the patient in sexual activity.
Findings Of Fact Respondent, Robert W. Fausel, Jr., M.D., is a licensed physician in Florida, holding license number ME0016953. By Final Order dated January 3, 1984, Respondent was placed on five years probation by the Florida Board of Medicine for alcoholism and inappropriate prescribing of controlled substances to patients. Currently, Respondent's medical license remains in a probationary status. In 1984, F.S., a sixty-eight (68) year-old male, was a patient at the Family Practice Center, a health maintenance organization (HMO), in West Palm Beach, Florida. On May 15, 1984, F.S. presented to the Family Practice Center for problems with a hiatal hernia and was seen by Salomin Levin, M.D., one of the physicians on staff at the HMO. During this visit, Dr. Levin explained the physiology of a hiatal hernia and advised F.S. to return to the Center as needed. The patient history recorded by Dr. Levin during F.S.' 1984 visit revealed that F.S. had not been to a doctor in the past four (4) years and had not had a physical during that four year time period. At the time of F.S.' 1984 visit, the standard of care for a male over 40 years of age required that a complete medical history should be gathered and an annual physical examination including a rectal examination be performed, or at the very least have been offered, and either arranged for or refused by the patient. However, the medical records do not reveal that the need for a complete physical was discussed during F.S.' visit or that such a physical was performed. Likewise, the records do not reveal that F.S. was worked up for a complete medical history during his May 15, 1984, visit. On March 4, 1985, F.S., at age sixty-nine, presented to the Family Practice Center with complaints of pain in the hip, thigh and lower back. Respondent, then on staff at the Family Practice Center, saw F.S. during his March 4, 1985, visit and observed a deceptively healthy looking older man. The entry on F.S.' medical records written by Dr. Fausel stated that "The patient lifted an elderly man who had fallen out of bed 3 weeks ago; now has pain in left hip and thigh and low back." Significantly, F.S. did not report that he had any pain in the hip, thigh or back prior to lifting the elderly man. Further, F.S. did not report that he had any urinary symptoms such as difficulty with urination, dysuria, cloudy or bloody urine. 1/ However, other than the history associated with F.S.'s back pain, Respondent did not record any sort of general history, physical or rectal examination of F.S. even though Respondent knew, through a review of F.S.'s medical records, that F.S.' medical records did not reflect that F.S. had been worked up for a complete history or physical during his previous visit in 1984. Respondent did treat F.S. for the primary complaint for which he came to the Center, i.e., pain in the hip, thigh and lower back. Given the history F.S. related regarding his pain, Respondent appropriately suspected that F.S. had suffered a musculoskeletal injury involving the left hip, thigh and lower back and referred F.S. to Dr. Stopek, a chiropractor for further examination of F.S.' condition. F.S. initially saw the chiropractor on March 5, 1985. Thereafter, F.S. saw the chiropractor at least four more times through out the month of March. At some point X-rays were taken of F.S.' left hip, thigh and lower back. Eventually, F.S. was referred back to Respondent with a diagnosis of DJD in the left hip and a recommendation that the patient be given a prescription for the pain medication Feldene, a legend drug. On or about April 4, 1985, F.S. returned to Respondent at the Family Practice Center for his continued pain. Respondent diagnosed F.S. with arthritis in the left hip. Respondent also, at the request of the chiropractor, prescribed Feldene to F.S. for pain relief. Additionally, Respondent began a general physical examination of F.S. with the expectation that the blood and rectal exam would be completed during later visits. In essence, a complete physical examination of F.S. would be accomplished in stages. Following that course of action, F.S. arranged to have a standard blood profile accomplished. The actual blood work was performed on June 4, 1985, and a report of the results was issued. Unfortunately, for reasons due mainly to the operation of the HMO and the assignment of doctors to patients on a daily basis, Dr. Fausel never saw F.S. again and the doctor patient relationship between Respondent and F.S. terminated. A rectal exam was never performed on F.S. by Respondent. However, F.S. was seen by other doctors at the HMO on at least eight occasions throughout 1985 and 1986. These doctors had F.S.' medical records available to them and were aware that those records did not indicate that either Respondent or any of the post-Respondent doctors, prior to December 3, 1986, performed a rectal examination on F.S. These doctors did continue to evaluate F.S.' pain as either some form of arthritis or paget's disease. In 1986, F.S. was referred to an orthopedic surgeon and rheumatologist for further evaluation of his pain. It was the rheumatologist who finally performed a rectal examination of F.S. and noted a hard prostrate, indicating possible cancer. At that point, F.S was referred for blood tests specific to prostate cancer and to an urologist. On October 23, 1986, Jitendra Varma, M.D., the urologist, ordered a prostate biopsy on F.S. which revealed adenocarcinoma. Subsequently, on November 24, 1986, Dr. Varma performed a bilateral orchiectomy on F.S. In this case the Department is attempting to prove a case of malpractice based solely on F.S. medical records which may or not be complete. In fact, the evidence demonstrated that no records custodian from the HMO had custody of F.S.' medical records or that those records were complete. Many of the records submitted into evidence were impossible to read. No testimony from F.S. to fill in important details as to what took place during his HMO visits was presented at the hearing. In short, the Department is attempting to infer from an absence of entries in a patient's medical records that some medical service did not occur or was not offered. However, given the brevity of the medical records from the HMO, the healthy appearance of F.S., the loss of memory due to the age of this case and the lack of testimony from F.S., it is impossible to determine if any malpractice occurred since the absence of an entry from F.S.'s medical records does not mean that the need for a physical and follow-up appointments were not discussed or that Respondent failed to perform an adequate evaluation of F.S. which would have included a medical history. The same can be said for the lack of a rectal exam during the brief two visits Respondent treated F.S. for his primary complaint of pain. Indeed the medical records reflect that on September 14, 1985, someone from the HMO contacted F.S. and that he stated everything had been taken care of. Additionally, the Department's own experts disagreed on whether the "piecemeal" basis of F.S.'s physical examination was inappropriate or that the referral to the chiropractor was inappropriate. Given these facts, the evidence did not clearly and convincingly demonstrate that Respondent failed to treat F.S. with an appropriate standard of care by either referring F.S. to a chiropractor, performing a physical exam on a piecemeal basis or by failing to perform a rectal examination on F.S. Given these facts, the Department has failed to clearly and convincingly demonstrate that Respondent failed to practice medicine with an acceptable level of care in regard to patient F.S. Indeed, the best that can be said of this case is that Respondent may not have kept adequate medical records. However, Respondent was not charged with such a failure and the matter was not an issue in this hearing. Because of the Department's failure of proof the Administrative Complaint relating to Respondent's care of F.S. should be dismissed. By 1987, Respondent had moved to North Florida and opened a general practice in Century, Florida. Respondent was also on staff at Jay Hospital. From November, 1987, through June, 1989, C. David Smith, M.D., was Respondent's monitoring physician under the terms of Respondent's probation. Additionally by 1989, Respondent had developed a number of serious medical problems as well as some mental difficulties associated with his diabetes and bipolar disorder. One such problem was impotence with a very low libido. On March 20, 1989, Respondent began treating Patient C.C. and admitted C.C. to Jay Hospital under his care for evaluation and treatment of a medical condition. C.C. had a ten (10) year history of psychiatric illness. Some of the symptoms of her mental illness were depression and anxiety. C.C.'s medical condition was not associated with her mental condition. On April 4, 1989, after treatment of her medical condition, Respondent discharged C.C. from Jay Hospital. Respondent's discharge summary for C.C. dated April 4, 1989, included the following: . . . At that point, on 3/23/89, it was noted that the patient was making statements which sounded quite psychotic, referring to delusional material. She stated that she believed her neck and cervical spine in the back of her head and the roof of her mouth were 'rotten' and cancerous. She stated that God had revealed to her the fact that she was going to die of cancer. She stated that God had been quite specific as to the means by which she would die, namely, by the collapse of the roof of her mouth, jaws, and skull, which would then occlude her airway, making her choke to death or die of asphyxiation. She stated that God had revealed to her the fact that she was going to die of cancer. In addition, she stated that she had been dead and had come back to life. She made additional statements which lead me to believe that she was psychotic. I began a series of discussions with the patient, to evaluate her psychosis, and I found that the patient was extremely resistant to the idea of psychiatric evaluation. She felt that she was not psychotic or 'crazy' at all. In addition, she resented anyone implying that she was psychotic or crazy. She stated that her family members had implied in the past that she was crazy or psychotic and this made her very resentful. . . . The patient stated that on May 12, 1984, she heard God's voice warning her that her death was imminent. She added that God had told her that she was going to die of cancer, specifically bone cancer, brain cancer, and cancer of the ears, mouth and jaw bones and neck and spine. She stated that the medical terminology for the type of cancer from which she was going to diet [sic] was a medullablastoma. The patient also stated that she was a prophetess of God, one of five listed in the Bible. She stated that she had been told by God that she was literally going to choke to death and that her time was drawing near. Paramount in her delusion was the idea that she was going to diet [sic] within a very short time. I pointed out to her that she continued to live, in spite of her predictions that she would be dead within 24 hours. She explained this by stating that God gave her small extensions of life, and this was why she continued to live. I noted that she experienced a great deal of anxiety about death and that this anxiety repeated itself on a daily basis. She has a continual fear that her death is very close, and yet insists that she does not fear this death, because she stated that she is a prophetess of God and is going straight to Heaven. In the past, she had been treated with Prolixin, Artane and Lithium Carbonate for her psychotic problems. Conversation with her family indicated that they thought that she was 'crazy', but 'harmless'. My arguments with the patient that there was absolutely no physical evidence for her death were useless. Discussions with her family indicated that she had been hospitalized for psychotic problems in the past. I discussed with the patient the possibility of admitting her to a psychiatric institution, however, the patient was adamantly resistant to this idea. The patient also was extremely resistant to the [sic] idea of taking Prolixin, Lithium Carbonate, and Artane. . . . It was apparent that the patient was frankly psychotic and probably falling into the paranoid schizophrenic category, with religious delusions and auditory hallucinations. . . . At no time did I hear the patient express any suicidal ideation, and she did not seem to be a danger to herself or to other people. Also, at no time did the patient threaten to harm anyone else, or seem to constitute a danger to other people. . . . The evidence did not show that C.C. had any tendency to sexual delusion or sexual preoccupation. On May 17, 1989, Respondent again admitted C.C. to Jay Hospital for treatment of a medical condition not associated with her mental condition. C.C.'s mental illness continued to manifest itself as outlined in the April 4, 1989, discharge summary despite Respondent's assurances that he could not find any evidence of cancer. Again the evidence did not show that C.C. had any sexual delusions or preoccupations. Additionally, the evidence did not show that C.C. desired a psychiatric referral or could have been forced to accept such a referral. Because C.C. had manifested her fixed delusions for such a long time, her friends and family were fed up with her and did not overly concern themselves with C.C.'s condition. C.C. felt very much lost and alone. Because of C.C.'s loneliness, Respondent felt sorry for C.C. and tried to be friends with her. C.C. saw Respondent's attentiveness as a salvation and would call on him when she felt anxious about her personal or medical state. The evidence did not demonstrate that C.C. saw Dr. Fausel in a romantic or sexual way, but only in a friendly Christian love way. Likewise, the evidence did not reveal that Respondent's attempts at friendship with C.C. were for sexual reasons. Indeed, except for one church tent revival, Respondent did not attend any social outings or church functions with C.C. C.C. believed that Respondent felt Christian love for her. On June 20, 1989, Respondent received a telephone call from C.C. C.C. was having severe anxiety and advised Respondent that she was contemplating suicide. Respondent arranged to meet with C.C. later that evening. On the evening of June 20, 1989, after normal business hours, Respondent met C.C. and they went to his office at 8401 North Century Boulevard, Century, Florida. Respondent was seeing the patient as both a friend and a medical doctor. Respondent and C.C. went into a vacant examination room in Respondent's office. The lights in the room were on. Respondent and C.C. sat on the floor. Because Respondent was somewhat obese, Respondent undid the top button of his pants so that he could more comfortably sit on the floor. The office air conditioning was off and it was hot in the room. Respondent and C.C. discussed religious matters and C.C. sang hymns. At one point, both stretched out on the floor facing each other. Just prior to 11:00 p.m., C.C. removed her dress and turned off the lights. She still had on her slip and underwear. C.C. lay back down on the floor within approximately one foot of Respondent. C.C. did not make any sexual advances towards Respondent and her disrobing was not for sexual purposes. Respondent asked her to put her dress back on at least twice. He told her that she looked more saintly fully dressed. Respondent did not make any sexual advances toward C.C. Within a few minutes of C.C.'s disrobing, at approximately 11:00 p.m., Respondent's nurse, Jane Jackson, found Respondent and C.C. on the floor of the vacant room. Nurse Jackson turned on the office lights as she entered the room occupied by C.C. and Respondent. With little conversation, Nurse Jackson left the clinic and reported what she had seen to C. David Smith, Respondent's monitoring physician. Dr. Smith telephoned the administrator of Jay Hospital, Mr. Allen Foster, and arranged a meeting during which Dr. Smith informed Mr. Foster of Nurse Jackson's observations. Dr. Smith and Mr. Foster met with the Respondent to discuss what had transpired. On June 21, 1989, Respondent withdrew from practicing at his office in Century, Florida and voluntarily began treatment for the depression he was experiencing. In essence, the facts of this case do not establish that Respondent used his doctor patient relationship with C.C. for any sexual purpose or that Respondent committed any acts of sexual misconduct involving C.C. The evidence only demonstrated that C.C. had a tendency to act in a bizarre manner by disrobing when she was overheated and that Respondent did not overreact to his patient's inappropriate behavior, but attempted to try to redirect her conduct to more appropriate behavior. Such action by Respondent does not constitute sexual misconduct and the Administrative Complaint charging Respondent with such misconduct should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Board of Medicine enter a Final Order dismissing both the Administrative Complaints. ENTERED this 3rd day of March, 1993, in Tallahassee, Florida. DIANNE CLEAVINGER 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 3rd day of March, 1993.
Findings Of Fact At all times pertinent to the issues heard at this hearing, Respondent was licensed to practice medicine in the State of Florida under License No. ME- 0022000 and was in practice in Orlando. Respondent is Dr. Mario Vega. Dr. James J. Schoeck, a physician practicing in Orlando, was, during 1980, Chairman of the Board of Censors of the Orange County Medical Society (OCMS). In that capacity, he had occasion to contact Respondent based on a letter from Dr. Alberto Herran, Chairman of the Patient Review Committee, founded on a grievance letter from a former patient of Respondent, Debra Mitchell. Ms. Mitchell had complained that she had gone to see Respondent on a medical matter and he had given her a 20-minute pelvic examination without wearing a surgical glove and without a nurse present. Since this was the Respondent's first reported offense allegation, Dr. Schoeck merely discussed the situation with him and got his side of the story, to the effect that a female employee was just down the hall during the examination and nothing out of the ordinary was done. No further action was taken by the OCMS as a result of this. It is not a unique type of complaint for the OCMS which, upon investigation, finds most to be unfounded. Debra Hall Mitchell saw Respondent in his office on September 19, 1980, because she was having a pain in her lower abdominal area, thought she might have an infection of some kind, and wanted it checked. When she got to the office, the only people there were Respondent and his wife, who after weighing her and doing the preliminary activities, took her into an examining room and asked her to disrobe and don a paper examining gown. When Respondent came in, he asked her to lie down on the examining table and asked what her problem was. Ms. Mitchell told him about the pain she was having. At that point, she thought it odd that there was no nurse present in the room with them, but because she had a strong trust in doctors, she did not worry about it. The pelvic examination took approximately 20 minutes with Respondent having the fingers on one hand in her vagina while he pushed on her abdomen with the other hand. When he was finished, he had her stand in front of him with her back to him and examined her vagina with her standing up, again using his other hand to push on her stomach, from time to time asking her if what he was doing hurt her. During the course of the examination, because it took as long as it did, Ms. Mitchell became alarmed and asked Respondent if anything was wrong. He replied that one of her ovaries was enlarged, but not to worry about it. When she got off the table, it was then she noticed that Respondent was not wearing any surgical gloves. She is not sure if he began the pelvic examination by using any type of instrument. After completing the examination, Respondent told Ms. Mitchell to get dressed and left the room. After she was dressed, he came back in, told her he did not find anything except for a slightly enlarged ovary, gave her a prescription for an antibiotic, and requested she come back in a week. When she stopped at the front desk, she did not say anything to the lady there, the Respondent's wife, because she was embarrassed. She merely did the necessary administrative things, including making another appointment and arranging for payment by Medicaid and left. However, as she began telling her friend about what happened on the way home, she got more and more upset; and when she arrived home, she called a female doctor friend of hers who advised her to write to the Medical Society, which she did, but not until two months later. Also, she discussed the situation with a couple of her very closest friends during this period to get advice on what to do about this situation. She neither had the prescription given her by Respondent filled, nor went back to see him again. Several weeks later, when her condition had worsened, she went to see another physician. On April 16, 1982, Georgia S. Fields, 17, went to the Respondent's office to get her birth control pills. She had been to see him four or five times previously, having been taken there initially by her mother, who was also Respondent's patient. When she entered his examining room, Respondent asked her to sit down and asked how her mother was. Then, according to the witness, he had her stand up, and, sitting to the side of her, unzipped her dress and checked her breasts. He then ostensibly pulled her underpants down below her knees and massaged her clitoris for about 10 minutes, during which time he said nothing to her. He then reportedly examined her vagina and told her she was dry. After these activities went on for a while, according to the witness, he then moved her chair behind her and brushed his lips, like a light kiss, across her shoulder. With that, the witness called an immediate halt, at which point the Respondent pulled her panties back up, wrote out her prescription and returned to his office while she went up to the desk. According to the witness, this was unusual, as he usually would accompany her to the desk. Ms. Fields, feeling quite upset about this situation, told the lady at the desk what had happened and refused to pay the bill. When she got home that day, Ms. Fields told her mother what ostensibly had happened and, on the next morning, reported it at the police department. Ms. Fields, as was stated above, has seen Respondent on several different occasions going back to early 1981. Though she denies having had any type of vaginal discharge, she admits to several infections, and her medical records indicate she was treated on various occasions for vaginal discharge. Ms. Fields also states she came in on the day in question only to get a refill on her birth control pills, yet both Respondent's testimony and his patient notes clearly reflect that she complained about low back pain resulting from an injury at work and requested information about a possible disability. Catherine Lynn Griffin, Ms. Fields' cousin, recalled a conversation she had with her shortly after Ms. Fields' last visit to Respondent. At that time, Ms. Fields stated she was angry with Dr. Vega because he would not give her a statement regarding her work. Ms. Fields indicated at the time that she had filed a complaint against the doctor, although she would not say why. She was heard to state at that time words to the effect that "I'll either get some money from him, or he'll lose his license." Coincidentally, Ms. Fields' medical records on file at her work place, Disneyworld, reflect that on June 1, 1982, somewhat over a month after her last visit to Dr. Vega's office, she was seen in the Disney doctor's office complaining of pain in the low back area resulting from pushing a wheelbarrow up a hill while at work in the landscaping department on May 28, 1982. At that time, the doctor put her on light duty for one week. She was seen again in follow up on June 8 and June 22. There is no evidence of any permanent injury. About three weeks after the alleged incident, on April 16, 1982, Ms. Fields' mother came into Respondent's office and apologized to Mrs. Vega, who was working there at the time, saying that she knew her daughter's allegations were not true. Mrs. Fields is still currently a patient of Respondent. Respondent denies any impropriety with Ms. Fields on this or any other occasion. While admitting he did not have a witness in the room while examining Ms. Fields, he states there was no need to do so because there was no pelvic examination conducted. He contends that the visit concerned itself with the birth control pills he prescribed, discussion of resolved prior vaginal discharge problems and continuation of discussion regarding a certification of Ms. Fields' mother as an alcoholic, which he refused to do. The main purpose of the visit related to an examination of her back concerning her request for a disability certificate for work. He also refused to give her the certificate. Dr. Vega also referred to his admitted failure to use gloves, which other evidence showed is sometimes the case with other doctors as well. Both the presence of a witness and the use of gloves are protection for the physician, not the patient. The first protects against unwarranted allegations of improper conduct, and the second, while admittedly protecting the patient from possible infection by the hands of the doctor, equally as important and more likely, protects the doctor from contamination by his patient. Ms. Fields was, at the time of the alleged incident, under 18 years old. She dropped out of school in the ninth grade. She has been described in her medical records as having acne, unpleasant odors from the vaginal area, cervical and vaginal discharges secondary to poor hygiene habits, oily seborrhea and halitosis. Considering the inherent probabilities and improbabilities of the evidence presented, and the permissible influences to be drawn therefrom, the evidence fails to establish sufficiently that this Respondent conducted a vaginal examination on this occasion or made any sexual advances toward Ms. Field by kissing her shoulders.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner dismiss the Administrative Complaint herein. RECOMMENDED this 17th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Ms. Dorothy Faircloth Department of Professional Executive Director Regulation Board of Medical Examiners 130 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation 130 North Monroe Street Michael Sigman, Esquire Tallahassee, Florida 32301 Post Office Box 1786 Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Findings Of Fact The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m. The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004. Julia Woods was removed by the Nursing Director, Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she specifically instructed Ms. Wood to improve the quality of patient care. Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit. The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice. The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed. The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient. Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care. The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit. Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient. On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated. The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner. Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner. Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective Action in a 12-month period would result in termination. Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season. The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection. The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin. The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient. The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.” Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change. A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences. Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005. Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action. Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand. In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose. The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees. The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in Ms. Woods's office when discussing the Petitioner. The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American. The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m. Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all. The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director. Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and persuasiveness.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 January, 2010. COPIES FURNISHED: Nancy Toman Baldwin, Esquire Law offices of Nancy Toman Baldwin 309 North East First Street Gainesville, Florida 32601 Marquis W. Heilig, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue 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.
Findings Of Fact The Parties 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.
Recommendation 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. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2021. Amanda M. Godbey, Esquire Ryan Sandy, Assistant General Counsel John A. Wilson, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Edward Donald Reagan, Esquire Edward D Reagan, P.A. 658 West Indiantown Road, Suite 209 Jupiter, Florida 33458 George Kellen Brew, Esquire Law Office of George K. Brew 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 Louise Wilhite-St. Laurent General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399 Robert N. Nicholson, Esquire Nicholson & Eastin, LLP Suite 301 707 Northeast 3 Avenue Fort Lauderdale, Florida 33304 Paul A. Vazquez, J.D., Executive Director Department of Health, Board of Medicine 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253
