The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Department of Professional and Business Regulation, Board of Medicine, (Petitioner) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. Anand Lattinand, M.D., (Respondent) is and at all times material to this case, has been a board certified Dermatologist and a licensed physician in the State of Florida holding license number ME0034105, and located at 3450 East Fletcher Avenue, Tampa, Florida 33613. The Respondent first met A. L. (patient), a male, upon examination in July, 1992 for a lesion on the left axilla and anterior chest. Upon the initial examination, the Respondent learned that the patient, a retired lawyer, was a charter boat operator. The Respondent diagnosed the lesion as an inflamed seborrheic keratosis and applied liquid nitrogen, causing the lesion to blister and peel off. An appointment made for December 1992, was cancelled by the patient. On or about May 6, 1993, the patient, then 61 years old, presented to the Respondent with complaints of a rash on his chest. Upon examination, the Respondent noted that the rash also appeared on the patient's back and arms. The Respondent performed a dermatological examination on the patient to determine the cause of the rash. In addition to the rash, the examination revealed redness and papules (bumps) on the patient's skin. Although the patient indicated to the Respondent that the rash did not itch, the skin rash was excoriated and ulcerated, indicating that it was being scratched. Some of the papules exhibited a "lichenified" appearance. The Respondent requested that the patient undress so that a full body exam could be performed. Further examination revealed that the papules extended to the patient's hips and upper buttocks and on the lower legs. Such papules can be indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis. The patient is a nudist. The patient did not tell the Respondent about his sun exposure. Such sun exposure may result in appearance of papules on parts of the body. The Respondent was not aware of the patient's nudist activities. Based on the Respondent's suspicions about the origin of the rash, further diagnostic inquiry warranted a complete genital examination. The Respondent requested and obtained the patient's consent for the genital examination. A standard dermatological genital examination includes the touching of the penis and testicles of a male patient. The scrotum is examined for eczema. The skin of the penis is manipulated. The penis is squeezed and the urethra is examined for evidence of discharge. The Respondent put gloves on his hands and performed the genital examination. As the examination progressed, the Respondent informed the patient of the purpose for the procedure. The exam revealed no scabies or insect bites. There was no discharge present. There was no genital indication of herpes simplex or dermatitis. Despite the absence of genital symptoms, the Respondent was unable to rule out disseminated herpes simplex as the cause for the existing skin condition. Accordingly, the Respondent inquired into the patient's marital status and sexual habits. Inquiry into the sexual habits of the patient was medically appropriate given the nature of the suspected origin of the condition. Beyond mere herpes simplex, the Respondent was concerned about the possibility of AIDS and its related impact on the progression of herpes simplex. The patient appeared to be uncomfortable with the questioning. The Respondent had doubts as to the credibility of the information being provided and so discontinued the questioning. The examination was concluded. Unable to specifically identify the cause of the condition, the Respondent provided the patient with two ointments intended to treat the rash. The patient dressed, paid for the examination and left the Respondent's office. Based on the testimony of the patient, the Petitioner alleges that, without the patient's consent, the Respondent fondled the patient's genitals with his ungloved hands to the point when the patient's penis became erect, and that the Respondent then requested that the patient masturbate while the Respondent watched. The Petitioner asserts that the patient declined the masturbation request, but permitted the Respondent to complete the exam. Apparently, the patient made no objection to the alleged fondling until he was asked to masturbate. Based on the presentation and demeanor of the patient-witness at hearing, the testimony of the patient is not credible. The evidence fails to establish the allegations of the Administrative Complaint. The Respondent denies that the examination was performed ungloved, that he manipulate the patient's penis to erection or that he requested that the patient masturbate. The testimony of the Respondent is credited. The greater weight of the evidence establishes that under the circumstances, the genital examination was properly performed and is an appropriate method of attempting to diagnose the cause of the skin rash from which the patient suffered.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and RECOMMENDED this 8th day of June, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6252 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8. Rejected, contrary to the greater weight of credible and persuasive evidence. 9-10. Rejected, unnecessary. 11. Rejected, contrary to the greater weight of credible and persuasive evidence. 12-14. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3-4. Rejected, irrelevant, unnecessary. 7. Rejected, unnecessary. 9. Rejected as to whether patient would be aware of visual examination, unnecessary. 12. Rejected, unnecessary. 23. Third and fourth sentences are rejected, unnecessary. 27. Rejected, subordinate. 30. Rejected, unnecessary. COPIES FUIRNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Steve Rothenburg, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Veronica E. Donnelly, Esquire J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER, TIPTON & MOSELEY 100 North Tampa Street, Suite 2825 Tampa, Florida 33602
The Issue Did the Respondent commit the violations alleged in the Administrative Complaint dated June 26, 2000, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Respondent is and, at all times material hereto, has been licensed to practice medicine in the State of Florida. On June 23, 1999, patient J.V., a 19-year-old female, presented at Mid Town Clinic (Mid Town) in Zephyrhills, Florida, along with Gabriel Amparo, the man with whom she lived and the father of her children. J.V., a Medicaid eligible patient, appeared at Mid Town to obtain a referral from a primary care physician to Dr. Ferilta, her gynecologist, in order to receive an intrauterine device (IUD). J.V. had appeared previously at Mid Town with Gabriel Amparo, who also received medical care and treatment from the physicians at Mid Town. On June 17 and 18, 1999, Gabriel Amparo had medical appointments at Mid Town and was accompanied by J.V. While at Mid Town with Gabriel Amparo on June 17 or 18, 1999, J.V. made an appointment for herself at Mid Town for June 22, 1999, at 3:45 p.m., and Gabriel Amparo also made an appointment for June 22, 1999, at 4:00 p.m. At the time J.V. made her appointment for June 22, 1999, she was given new patient forms, which J.V. filled out. On June 22, 1999, both J.V. and Gabriel Amparo arrived at Mid Town approximately 30 minutes late for their appointments. Respondent had already left Mid Town in order to make his rounds at the Hospital. J.V. lost her temper and became upset with the female staff members on duty that day. J.V. and Gabriel Amparo were given the last two appointments for June 23, 1999. J.V. and Gabriel Amparo arrived late for their appointments on June 23, 1999. Respondent, the physician at Mid Town who treated both J.V. and Gabriel Amparo on June 23, 1999, was still at Mid Town. However, the female nurses had already left for the day. J.V. was advised that the female nurses had left for the day. However, J.V. insisted that she be seen by the physician. J.V., was wearing a dark blue dress with flowers that buttoned down the front, from her chest to the middle of her thighs. The staff at Mid Town noted her appearance for the appointment and placed her in an examination room. The examination room contained a sink, chairs, and examination table. Respondent and J.V. discussed her request for a referral to Dr. Ferilta for the insertion of an IUD. Respondent asked J.V. if she was having any health problems. J.V. told Respondent that she thought she might have a urinary tract infection. J.V. identified bladder pain but did not identify symptoms in her pelvic area. At Respondent's direction, J.V. left the examination room, provided a urine sample, then returned to the examination room. Respondent reviewed the results of the urine test, indicated to J.V. that she might have a urinary tract infection, then directed J.V. to lay on her back on the examination table. Respondent directed J.V. to unbutton her dress, probed her abdomen from her stomach to her pubic bone, asked J.V. if she felt any pain, and told J.V. that he would check her vaginal fluid to see if she had any discharge. J.V. was wearing underwear. Respondent did not have on gloves and did not wash his hands before examining J.V. Respondent moved J.V.'s underwear from over her vagina and placed his ungloved finger in, though not all the way in, J.V.'s vagina. Respondent did not say anything to J.V. about her vaginal fluid or discharge. Respondent did not utilize cotton swabs, glass slides, or any other type of instrument in connection with his manipulation of J.V.'s vagina. Respondent did not wash his hands after his manipulation of J.V.'s vagina. Respondent and J.V. were alone in the examination room during the entire time of the incident. Respondent was apparently mistaken in his testimony that Gabriel Amparo came into the examination room towards the end of the examination. Respondent did not: (a) make any sexual comments to J.V.; (b) ask J.V. to go out with him; (c) rub against J.V.; (d) appear to have an erection; (e) fondle J.V.'s breasts; (f) expose himself in any sexual way; and (g) act sexually or seductive in any way. Respondent advised J.V. that he wanted her to give a blood sample the next morning, June 24, 1999, after she had fasted. Upon leaving the examination room, J.V. chatted with Gloria Frum who advised J.V. of the necessity of fasting a period of time before the blood draw the next morning. The blood was drawn at Mid Town on the morning of June 24, 1999. J.V. was apparently mistaken about giving the blood sample on June 23, 1999. During J.V.'s discussion with Gloria Frum after the examination, J.V. made no complaints about Respondent or the manner in which he performed the examination. The referral for the IUD was sent to Dr. Ferilta on June 24, 1999. J.V. was apparently mistaken about not receiving a referral for the IUD. Following the incident with Respondent, J.V. told Gabriel Amparo about what had happened. The next day, J.V. contacted Dr. Ferlita's office and spoke with Debbie Suckow, Dr. Ferlita's office manager. J.V. inquired of Ms. Suckow as to how Dr. Ferlita performed pelvic examinations. J.V. told Ms. Suckow how Respondent had performed her vaginal examination. Ms. Suckow informed J.V. that it was incorrect to perform a vaginal examination without gloves and without a chaperone being present. A short time after talking with Ms. Suckow, J.V. spoke to the Zephyrhills Police Department and made a report concerning the incident with Respondent. J.V. did not report the incident earlier because until she spoke with Ms. Suckow she was not sure Respondent had done anything wrong. The Zephyrhills Police Department referred J.V. to the hotline for Sunrise Domestic Violence and Sexual Assault Center. At Sunrise, J.V. spoke with, and later met with, Lillian Gonzalez, an outreach counselor. After relating the incident to Ms. Gonzalez, J.V. met with Clarice Freese, program supervisor, and related the incident to her. Subsequently, J.V. attended counseling sessions until a transportation problem caused her to stop. Mrs. Gonzalez referred J.V. to an attorney and to the agency regulating physicians in Tallahassee, Florida. J.V.'s testimony concerning the procedure used by Respondent in his examination of J.V. on June 23, 1999, is credible, notwithstanding the testimony of Respondent to the contrary, which I find lacks credibility. The normal course of an examination of a patient who presents with a suspected urinary tract infection does not involve a full pelvic examination, particularly where the patient does not identify symptoms in the pelvic area. The standard of care for a pelvic examination includes the use of gloves and the provision of a chaperone in the examination room. It is not usual and customary to simply push aside underclothing to perform an examination, and a physician would likely be unable to adequately perform an examination by doing so. It is outside the standard of care for a physician to manipulate external genitals with an ungloved finger as part of a pelvic examination. It is outside the standard of care to insert an ungloved finger into the patient's vagina while performing a pelvic examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under Rule 64B8-8.001(2), Florida Administrative Code, and Aggravating and Mitigating Circumstances under Rule 64B8- 8.001(3), Florida Administrative Code, it is recommended that the Board enter a final order finding Respondent guilty of the charges outlined in the Administrative Complaint and imposing the following penalty: (a) One-year's probation, during which Respondent shall attend the Florida Medical Association- sponsored continuing medical education course, entitled Professional Boundaries: Preserving the Physician-Patient Relationship and shall be evaluated by the Physician's Recovery Network; and (b) Assessment of an administrative fine of $2,500.00. It is further recommended that since there was no evidence presented by the Board in its Case No. 2000-01665 that the Board dismiss Case No. 2000-01665 set out in Administrative Complaint in paragraphs 19 through 32, including Counts Four through Six. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Kim Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 A. R. Mander, III, Esquire Greenfelder, Mander, Hanson Murphy and Dwyer 14217 Third Street Dade City, Florida 33523 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. He holds License No. ME 0019700. Respondent received his medical degree overseas and did his residence in obstetrics and gynecology at Bayfront Medical Center in St. Petersburg, Florida. He is neither board certified nor board eligible. For the past eight plus years Respondent's practice has been limited to terminating pregnancies at All Women's Health Clinic at Tampa, Florida. He has performed in excess of 15,000 abortions. One reason given by Respondent for so limiting his practice is the cost of medical malpractice insurance. Since he has no private practice, Respondent gave up admitting privileges at hospitals in the area. Without malpractice insurance, he would not be given staff privileges. On August 23, 1986, A. L., a pregnant 16 year old, entered All Women's Health Center, Tampa, to have her pregnancy terminated. A. L. had noted on her history statement that her last menstrual period started some eight weeks ago. Respondent first saw A. L. when he entered the procedures room at All Women's Health Center and commenced his examination prior to instituting abortion procedures. With respect to the examination the testimony varied widely. Diane Roberts, LPN, who was performing the duties of physician's assistant during the procedure, initially told the investigators that the examination lasted only a couple of seconds and consisted of a vaginal examination with two fingers of the right hand in the vagina while the abdomen was palpated with the left hand. At the hearing, Roberts testified that she wasn't paying much attention to the patient during the examination, didn't recall telling investigator the examination only took a couple of seconds, and recalled Respondent telling A. L. several times to relax. Respondent testified he performed a normal vaginal examination. The examination was longer than usual because A. L. wasn't relaxed and tensed her stomach muscles which made the uterus more difficult to palpate; and that following his examination he determined the gestational age of the fetus to be 12 weeks. Respondent testified he also checked the patient's heart and lungs before commencing the pelvic examination. A. L. testified that Respondent palpated her abdomen with two hands, but did not check heart and lungs or do a pelvic examination. A. L. had an earlier pregnancy terminated the previous year when the doctor did a pelvic examination with two fingers in the vagina while the abdomen was palpated with his other hand. The patient was ultimately determined to be 28 to 30 weeks pregnant. Largely because of the large error in gestational age, it is concluded that Respondent performed only a perfunctory examination on A. L. Had he conducted the proper examination, it is inconceivable that he, an experienced gynecologist, could underestimate the gestational age of the fetus by some four months. The magnitude of this error is illustrated by Respondent's testimony that a 12 week fetus is approximately 3 inches long and weighs 30 grams, while a 28 week fetus is approximately 14 inches long and weighs 1100 grams. Respondent started the procedure thinking he was aborting a 12 week fetus with the patient on the table and feet in the stirrups. After the instruments were inserted and the procedure started, Respondent concluded the fetus was 16 weeks, obtained a larger curette, then determined the fetus was more likely 20 weeks, again changed curette, and after removing fluid and part of an arm Respondent concluded that the gestational age of the fetus was some 28 weeks and required hospitalization to complete the procedure. Mistakes in determining gestational age can be made by a prudent physician if: (1) the patient is obese; (2) if the uterus is very soft and the extremities difficult to locate; (3) if the baby has a low fluid volume; (4) if the patient is very tense; or, (5) if the head of the fetus is felt and not the uterus. Here A. L. was more thin than obese which should have greatly facilitated palpation of the abdomen to determine the size of the uterus. Accepting the testimony that she was tense during the examination, and the earlier pregnancy would cause the uterus to be soft, no experienced gynecologist should conduct an examination of a patient such as A. L. and err on the magnitude here involved. Further, if the examination was difficult, the procedure should not have commenced until Respondent was reasonably positive of the gestational age of the fetus. One indication Respondent received that the fetus was older than 12 weeks was the quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the fetus as the extremity of the uterus on a patient such as A. L. Once Respondent determined the fetus was more than 16 weeks along, he called Dr. Barile, a gynecologist with admitting privileges at Humana Women's Hospital, Tampa, to request he remain available in case Respondent needed to send A. L. to a hospital. When Respondent determined the gestational age of the fetus' was more than 26 weeks, he again called Barile who suggested it would be better to refer the patient to an obstetrician. Respondent then telephoned his backup obstetrician and found she was on vacation, and a doctor with whom Respondent was not acquainted was taking her calls. Since A. L. was stable and in no apparent distress, Respondent called Dr. Klein, a pediatrician with admitting privileges at Bayfront Memorial Hospital in St. Petersburg. Dr. Klein agreed to take care of the patient by having his associate, who had the duty that day, meet the patient at Bayfront. A. L. had been brought to the clinic by her brother, and Respondent concluded A. L. could be safely transported to Bayfront by automobile and suggested her brother drive her. The brother demurred on the ground that his car overheated and might not make the 40-odd mile trip to Bayfront safely, but another brother had a more reliable car. The other brother was called and agreed to take his sister to Bayfront and stated that he would be at the clinic in about 10 minutes. Approximately 1 hour and 15 minutes later this brother arrived, and A. L. was started to the brother's car. At this time she appeared unsteady, and Respondent concluded she should go to Bayfront by ambulance. When a Hillsborough ambulance service was called, they told Respondent of the policy whereby they could not transport a patient out of Hillsborough County and that he should contact a Pinellas County ambulance service to perform the desired transportation. Respondent then called a Pinellas County ambulance service who arrived about an hour later to take A. L. to Bayfront where she was met by Dr. Yeshnick, the associate of Dr. Klein, who admitted the patient. Between the time Respondent determined the abortion could not be performed at the clinic until A. L.'s arrival at Bayfront Hospital, some 6 hours had elapsed. Of the approximately 15,000 abortions that Respondent has performed, less than 5 became emergencies that required removal from the clinic to a hospital. Respondent's backup procedures for emergencies were adequate. On August 23, 1986, A. L. was in the third trimester of her pregnancy, and the abortion was not necessary to save the life or preserve the health of A. L.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty therefor.
Findings Of Fact Parties and Investigation Leading to Issuance of the Amended Complaint The Department is the state agency responsible for regulating the practice of medicine pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. Respondent, Aunali Salim Khaku, M.D., is a neurologist and sleep medicine specialist licensed (ME 114611) in Florida. Respondent completed a neurology residency in 2013 and a sleep medicine fellowship in 2014. He practiced at the VA from 2014 until 2020, initially at the Lake Baldwin facility and then at the Lake Nona facility. From 2020 until early 2021, Respondent practiced at Orlando Health. Other than the allegations herein, the Department has never sought to discipline Respondent. The Department seeks to revoke Respondent’s license based on allegations that he engaged in sexual misconduct during office visits with three female patients—S.R., M.H., and M.V.S. The parties stipulated that the factual allegations, if proven by clear and convincing evidence, constitute sexual misconduct under Florida law. On or around December 6, 2020, M.V.S. reported to both the LMPD and the Department that Respondent acted inappropriately during an office visit on November 30, 2020. The Department investigated further, interviewed M.V.S. and Respondent, and obtained medical records from Orlando Health. On February 17, 2021, the Department issued an Order of Emergency Restriction of License (“ERO”) that restricted Respondent from practicing on female patients based on findings of sexual misconduct with M.V.S. On February 22, 2021, Respondent requested an expedited hearing under sections 120.569 and 120.57. The Department properly did not transmit the case to DOAH at that time, as judicial review of the ERO is via petition in the appellate court. §§ 120.60(6)(c) and 120.68, Fla. Stat. Respondent filed such a petition, but the First District Court of Appeal ultimately denied it on the merits. On March 9, 2021, the Department presented its disciplinary case to a probable cause panel of the Board. After hearing argument from both parties, the panel unanimously found probable cause to issue a three-count Administrative Complaint (“Complaint”) seeking to discipline Respondent for engaging in sexual misconduct with M.V.S. On March 10, 2021, the Department issued the Complaint. On March 16, 2021, Respondent requested an expedited formal hearing under chapter 120. However, the Department did not immediately transmit the Complaint to DOAH because it had just received notification that the VA investigated complaints of sexual misconduct against Respondent by two veterans, S.R. and M.H., who each saw Respondent multiple times between 2014 and 2016. The Department obtained records from the VA. As to S.R., the VA closed the matter as unsubstantiated based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations. As to M.H., the VA found no conclusive evidence of misconduct based on Respondent’s testimony, which was corroborated by the testimony of his nurse and a medical student. After receipt of the VA records, the Department interviewed S.R. and M.H. Based on this additional information, the Department presented its case to another probable cause panel to amend the Complaint to include allegations relating to S.R. and M.H. After hearing from both parties, the panel voted unanimously on April 23, 2021, to find probable cause of sexual misconduct with S.R. and M.H. On April 27, 2021, the Department issued the three-count Amended Complaint seeking to discipline Respondent’s license for sexual misconduct with S.R., M.H., and M.V.S. On April 29, 2021, Respondent filed a third request for a hearing, which sought transmission of the case to DOAH for an expedited evidentiary hearing to be held within 30 days. On April 30, 2021, 45 days after Respondent’s request for a hearing on the initial Complaint, the Department transmitted the Amended Complaint to DOAH to conduct an evidentiary hearing under chapter 120.2 2 In filings prior to transmittal of the Amended Complaint to DOAH, in pleadings prior to the final hearing, and orally at the final hearing, Respondent argued that the Department improperly delayed transmitting the case to DOAH and violated his due process rights throughout the investigatory process. Even had Respondent preserved those arguments by including them in his PRO, the undersigned would have found that the Department’s investigation, the probable cause panel proceedings, and the timing of the transmittal of the case to DOAH did not render the proceedings unfair or impair the correctness of the Department’s action based on the weight of the credible evidence. For one, the Department presented its case to the probable cause panel 20 days after issuing the ERO and issued the initial Complaint the next day. It presented the new allegations to a probable cause panel 65 days after the ERO (and 44 days after filing the initial Complaint) and issued the Amended Complaint the next day. The Department then transmitted the Amended Complaint to DOAH on April 30, 2021, one day after Respondent requested a hearing on it and 45 days after requesting a hearing on the initial Complaint. Based on this timeline, the Department met its obligation to promptly institute chapter 120 proceedings. See § 120.60(6)(c), Fla. Stat. (“Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.”); see also § 456.073(5), Fla. Stat. (“Notwithstanding s. 120.569(2), the department shall notify the division within 45 days after receipt of a petition or request for a formal hearing.”); Fla. Admin. Code. R. 28-106.501(3) (“In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to subsection (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28- 106.2015, F.A.C.”). The weight of the credible evidence also failed to establish any resulting prejudice to Respondent. He presented no evidence as to how the Department’s decision to investigate the new allegations and issue the Amended Complaint before transmitting the case to DOAH prejudiced his ability to defend against the allegations. The Department notified Respondent of M.V.S.’s complaint and allowed him to provide statements during the investigation, make arguments before both probable cause panels, conduct discovery, and adequately prepare for and defend against the allegations at a final hearing. The fact that the VA did not comply with Respondent’s discovery requests or make witnesses available is neither attributable to the Department nor a reasonable basis to argue prejudice, particularly where Respondent failed to enforce subpoenas or challenge the VA’s discovery objections in state or federal court. The undersigned simply cannot find that the Department violated Respondent’s due process rights by waiting 45 days to transmit the case to DOAH while the Department investigated new allegations involving two other female patients. At best, Respondent’s alleged prejudice is that the Department was able to prosecute him for sexual misconduct with two additional patients, which it had authority to do independently by separate complaint or by moving to amend the Complaint once it transmitted the case to DOAH. The latter option could have resulted in even more delay, as DOAH may have had to relinquish jurisdiction to allow for the new allegations to be approved by a probable cause panel if the Department had not already completed that necessary step. S.R.’s Two Appointments with Respondent in 2014 and 2015 In 2014, S.R., a 58-year-old veteran who just moved to Orlando, requested a neurology referral because she suffers from multiple sclerosis (“MS”). The VA referred her to Respondent with whom she had two office visits. On December 29, 2014, S.R. had her first appointment with Respondent at the VA Lake Baldwin facility. Respondent’s assistant took S.R.’s vitals but did not remain in the room during the examination.3 S.R. never asked for a chaperone to be present and one was not offered to her. Respondent entered the room and made introductions with S.R. They discussed the new VA facility in Lake Nona, where Respondent lived, and restaurants in that area. According to S.R., Respondent said that he hoped to see her, though she did not understand what that meant. S.R. explained that she suffered her first MS attack over 30 years earlier but only recently was diagnosed with the disease after a neurologist ordered an MRI. She discussed her current symptoms, including back pain, muscle spasms, and fatigue. Respondent told her that back problems were common for women with large breasts, which she thought was odd. But, she expressed hope that Respondent could continue to help with her symptoms much like her prior neurologists in South Carolina and South Florida. Respondent examined S.R. and tested her reflexes, vision, coordination, and physical limitations. Respondent said he wanted to listen to S.R.’s heart. Without even trying to listen over her clothes, he asked S.R. to lift her t-shirt. He began rubbing his stethoscope across both her breasts and under her bra. He then cupped the bottom of her left breast with the palm of 3 The VA advocate’s report indicated that S.R. said that Respondent instructed his assistant to leave the room prior to his examination. However, S.R. testified credibly that she never made that allegation and her handwritten statement to the VA advocate also contained no such allegation. That the VA advocate’s hearsay report says otherwise neither calls S.R.’s credibility into doubt nor undermines the clear and consistent nature of her testimony. his hand while holding the stethoscope between his fingers and touching her nipple. This portion of the examination lasted about ten seconds. At the end of the initial visit, Respondent discussed treatment plans, medication, and physical therapy with S.R. They scheduled a follow-up appointment for several months later. Respondent documented S.R.’s records based on his examination. Although S.R. testified credibly that she had a heart murmur, Respondent noted a regular heart rate and rhythm with no murmurs. He also continued S.R.’s prescription for Diazepam, though several months later he placed an addendum for that initial visit record to indicate the prescription was improperly entered under his name and that he would defer to S.R.’s primary care physician for that medication. S.R. thought Respondent’s conduct was weird because no doctor had ever listened to her heart under her clothes or touched her breasts in that manner. She felt confused and uncomfortable, but she did not report the incident then because she trusted Respondent as her doctor and thought it could have been a mistake. She also thought Respondent might be the only neurologist at the VA. She discussed the incident with her husband and decided that she would be more aware at subsequent appointments. On March 30, 2015, S.R. had her second visit with Respondent at the Lake Nona facility. She arrived early, but the office staff delayed bringing her back and then had trouble taking her vitals. S.R. did not request a chaperone for this visit because everyone seemed very busy. Respondent entered the room and they were again alone. Respondent seemed irritated because he thought S.R. arrived late, which made her defensive. She complained of left hip pain and told Respondent that she had not gone for physical therapy. He examined her hip by lifting her leg, which hurt. She then sat up and he said he needed to listen to her heart. Again, without attempting to listen over her t-shirt and bra, he told her to lift her t-shirt. Because of what occurred during the last visit, S.R. kept her arms tightly by her sides to limit Respondent’s ability to touch her breasts. He kept using his elbow to try to relax her arms while moving the stethoscope higher over her breasts, eventually cupping her breast under her bra. He grabbed at her breasts but got frustrated by her refusal to relax her arms. At that point, Respondent threw the stethoscope into the sink and became angry, which startled S.R. and made her uncomfortable. She requested that he continue her Diazepam prescription to help her sleep at night, which she said her prior neurologist prescribed for muscle spasms. Respondent told her that the drug was for anxiety, not muscle spasms, though he documented in her record that she should continue to take the medication. Respondent also documented again that S.R. had a regular heart rate and rhythm. S.R. felt uncomfortable during the entire visit. She had never had a neurologist get angry or confrontational with her, but she decided not to report the incidents at that time because she was in pain and just wanted to go home. About a month later, she awoke in the middle of the night and realized the inappropriateness of Respondent’s conduct. In August 2015, S.R. returned to the Lake Nona facility to schedule an appointment with a different neurologist. When she saw Respondent’s name on the signage, she immediately went to the patient advocate to report his misconduct in the hope of preventing him from engaging in the same behavior with other patients. She met with the patient advocate and the VA police, and she completed a written statement. Although she was supposed to testify before the VA investigative board, she had trouble finding the room that day and left without speaking to anyone. Based on S.R.’s decision not to pursue criminal charges and the VA’s finding of insufficient evidence to support the allegations, the VA closed the matter as unsubstantiated. However, the matter was referred for clinical and/or administrative follow- up, which resulted in the VA updating its chaperone policy to require signs to be posted in the offices to put patients on notice of their right to ask for a chaperone. S.R. did not report the incidents to the Department at the time because she did not realize she could do so. But, when the Department contacted her in 2021 about this case, she agreed to participate and testify. The undersigned found S.R. to be a highly credible witness who unequivocally testified about Respondent’s inappropriate sexual behavior. S.R.’s testimony was compelling, specific, clear, and materially consistent with the statements she made when the incidents first occurred. Respondent testified about his treatment of S.R., but he conceded he had no independent recollection of the visits. Instead, he based his testimony on what he documented in her medical records and his standard practice. Respondent testified that he conducted a thorough examination in the same manner that he evaluates all of his new patients. He performed a cardiac examination over S.R.’s clothing by placing a stethoscope on her chest in several areas to listen to her heart. He confirmed that he never places the stethoscope on, or allows his hand to come into contact with, a patient’s breasts and that it was impossible that such contact happened with S.R. even inadvertently. He also said that he always has a chaperone present if he needs to listen to a female patient’s heart under her clothing and that is exactly what he would have done had he needed to do so with S.R. Respondent denied engaging in any inappropriate behavior with S.R. and suggested instead that she misperceived what happened. However, he offered no credible explanation for S.R. having such a misperception, except to accuse her of being upset for his refusal to prescribe her Diazepam. S.R.’s medical records fail to document any cognitive impairment and Respondent confirmed that she did not suffer from hallucinations or ailments that would cause her to imagine things that did not happen. Although S.R. admitted that it took her a few months to fully realize what Respondent had done and to report it to the VA, the undersigned has no hesitation in finding her testimony to be a fair and accurate account of Respondent’s actual conduct. The records themselves also call the veracity of Respondent’s testimony into question. Although S.R. credibly testified that she had a heart murmur, Respondent documented the lack of such a murmur even after conducting two cardiovascular examinations of her. Had Respondent conducted a proper cardiac examination, he should have identified and documented her murmur. Further, it cannot be ignored that the treatment plan for both visits continued her prescription for Diazepam, even though Respondent—after the first visit but before the second visit—placed an addendum in the record to indicate that S.R. needed to obtain the prescription from her primary care physician. Respondent’s notes for the March 2015 visit also document that Diazepam continued to be an active prescription for S.R., undermining the suggestion that she would fabricate an allegation of sexual misconduct against Respondent on that basis. Moreover, Respondent’s expert neurologist had never heard of a patient fabricating sexual misconduct allegations against a doctor for failing to prescribe medication. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with S.R. During the first visit, Respondent directed S.R. to lift her shirt and inappropriately rubbed his stethoscope across her breasts and under her bra, cupped her left breast with the palm of his hand while holding the stethoscope between his fingers, and touched her nipple. During the second appointment, Respondent directed S.R. to lift her shirt again. Although S.R. kept her arms tightly against her sides to try to limit Respondent’s ability to touch her inappropriately, he inappropriately rubbed the stethoscope across her breasts, cupped her breast under her bra, and grabbed at her breasts. Respondent did so on both occasions without first attempting to listen to S.R.’s heart over her clothing, which itself was contrary to the standard of care. M.H.’s Four Appointments with Respondent in 2015 and 2016 In late 2015, the VA referred M.H., a 39-year-old veteran, to Respondent for a neurological evaluation after she had an abnormal MRI showing white matter changes in her brain following an illegal drug overdose. M.H. had four office visits with Respondent at the Lake Nona facility on August 12, 2015, November 6, 2015, June 23, 2016, and August 1, 2016. During the first three visits, Respondent discussed M.H.’s medical history, prior drug use, and symptoms, including migraines, pain, possible nerve damage, and cognitive and motor issues; he also conducted physical and neurological examinations. During the fourth visit, Respondent performed a nerve block procedure to address M.H.’s migraines. M.H. testified about the visits and her uncomfortable interactions with Respondent. During several visits, he discussed the lack of sex with his wife and that she allowed him to step outside the marriage. He either asked M.H. out on a date or to meet at a hotel, which she interpreted as an offer of sex, and he also asked if he could call her. He asked her questions about her sex life several times, including how often she had sex with her boyfriend, what positions they liked, the size of her bra, and whether sex was painful. M.H. testified that Respondent also acted inappropriately. During one visit, he either lifted her shirt or asked her to lift her shirt to look at her breasts and listen to her heart. He once blocked the door to prevent her from leaving the room and attempted to put his arms around her to hug her. He once put his hands on the bottom of her buttocks, like a lover’s caress. During the fourth visit when the nurse left the room after the procedure, he had an erection and rubbed it through his pants against her leg while trying to give her a hug. She said that she told her mother in the waiting room after that visit that Respondent had rubbed his erection on her. She also said that he told her not to say anything about their interactions at each visit. In August 2016, M.H. reported Respondent’s conduct to the VA; she did not report the conduct to the Department because she did not know she could. The VA investigative board conducted sworn interviews of M.H., Respondent, his nurse, and a medical student, and it considered numerous letters of recommendation from Respondent’s patients and colleagues. It found no conclusive evidence of sexual misconduct based on Respondent’s testimony, as corroborated by testimony from a nurse and a medical student. M.H. testified passionately about Respondent’s conduct and how it made her feel. However, her recollection of the details—as to what occurred, when, and who was present—was fuzzy and inconsistent in material ways with the testimony she gave to the VA board in 2016, her deposition testimony in this case, and the testimony of her mother. M.H. stated that her recollection in 2016 was better than now, but the inconsistencies outlined below affect the weight to be given to M.H.’s testimony. M.H. testified initially that she and Respondent were alone in the examination room at some point during each visit. M.H. testified that she asked to have her daughter present during either the third or fourth visit, but Respondent refused. M.H. also testified on cross examination that she could not recall if her mother was in the room with her during the first two visits, only to later confirm that her mother must have been present during those two visits based on the testimony she gave before the VA board in 2016. M.H.’s mother testified that she accompanied M.H. to two of the visits, though she could not recall the dates. Contrary to M.H.’s testimony, her mother said she neither came back to the examination room nor met Respondent at any visit and based her testimony solely on what M.H. said. M.H.’s mother testified that M.H. said that Respondent asked her out after one visit and rubbed his erection against her back after another visit, which contravened M.H.’s testimony that Respondent rubbed his erection against her leg while hugging her from the front. Before the VA board in 2016, and contrary to her testimony at the final hearing, M.H. said that Respondent acted professionally during the first two visits and that her mother was present in the examination room both times. M.H. testified that Respondent became unprofessional while they were alone in the room during the final two visits, at which he asked inappropriate questions about her sex life. M.H. explained that she was offered a chaperone before the third visit, but she refused because nothing unprofessional had occurred before, and that Respondent refused to allow her daughter to be in the room during the procedure on the fourth visit. M.H. said Respondent grabbed her buttocks during the third visit and, during the fourth visit, he blocked the door after the procedure, grabbed her buttocks, lifted her shirt to comment on how much he liked her breasts, and rubbed his erection through his pants on her leg. When cross-examined about the inconsistencies, M.H. testified at the final hearing that she may have been protecting Respondent by saying in 2016 that he acted professionally during the first two visits, though she now recalls him acting unprofessionally during all four visits. During her pre-hearing deposition in this case, M.H. testified that Respondent asked questions about her sex life and bra size, discussed his open marriage, and asked her out during the first visit, but he did not touch her inappropriately. M.H. testified that Respondent refused to allow her daughter to stay in the room with her during the second visit and, after the examination, he blocked the door, grabbed her and tried to hug her, rubbed his erection on her stomach and leg, and again reiterated that he was allowed to have sex outside his marriage. She testified that Respondent discussed his open marriage and asked her to date him during the third visit; M.H. said that the office refused to allow her mother to accompany her in the room. M.H. testified that the only uncomfortable thing that Respondent did during the fourth visit was ask her out repeatedly. M.H. testified that Respondent never asked if she wanted a chaperone at any of the visits, though she later acknowledged that a chaperone was present at the fourth visit. Respondent testified about his treatment of M.H. based only on what he documented in her chart, as he had no independent recollection beyond his review of her medical records. Respondent denied any inappropriate behavior with M.H. He claimed that he never allowed himself to be alone in a room with her because she was engaging in manipulative, drug-seeking behavior. He basically accused M.H. of fabricating the allegations against him because he refused to prescribe her pain medication. However, Respondent’s accusations against M.H. are questionable for several reasons. Respondent never documented in her record his concern about M.H.’s alleged drug-seeking behavior, that a chaperone needed to be present at all visits, or that she had requested pain medication. Although he documented the presence of his nurse and a medical student at the fourth visit, he failed to do the same for the first three visits. One would expect a physician—surely one as concerned about a patient’s drug-seeking history and behavior as Respondent now claims to be—to document those concerns and the presence of chaperones in the medical record to prevent any future false accusation. This is particularly so given that Respondent, at the time, had recently been accused of misconduct by S.R., which he believed was both false and based on her drug-seeking behavior. The medical records also confirm that M.H. informed Respondent at the June 2016 visit that she had been prescribed Lyrica for pain while in jail and that it was working. Respondent noted, “Renewed lyrica,” in the plan/recs section of the record for that visit. Respondent also noted Pregabalin, the generic name for Lyrica,4 in both the active and pending medication lists for both the June and August 2016 visits. The weight of the credible evidence does not support Respondent’s claim that M.H. fabricated her allegations because he refused to prescribe her pain medication, particularly given her credible testimony that she did not 4 According to WebMD, the generic name for Lyrica is Pregabalin. Available at https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details. need pain medication because Respondent continued her Lyrica prescription. It also bears repeating that Respondent’s own expert had never heard of a patient falsely accusing a doctor of sexual misconduct for refusing to prescribe medication. After evaluating the evidence, the undersigned finds M.H. generally to be a more credible witness overall than Respondent. She testified passionately and credibly about Respondent’s requests to meet her outside the office because he had an open marriage and his wife allowed such conduct. She also credibly explained how Respondent commented on the size of her breasts, grabbed her buttocks, and rubbed his erection on her. Importantly, however, the undersigned cannot ignore that the clear and convincing evidence standard applies in this case. M.H.’s recollection was too fuzzy and inconsistent to definitively find without hesitation that Respondent engaged in the exact sexual misconduct alleged by M.H. and set forth in the Amended Complaint. If the Department’s burden in this case was a mere preponderance of the evidence, the undersigned would likely find that it proved Respondent engaged in sexual misconduct with M.H. But, the clear and convincing evidence standard applies herein. And, because M.H. could not provide the type of definitive and clear testimony required in this disciplinary action, the Department failed to prove that Respondent engaged in sexual misconduct with M.H. M.V.S.’s One Appointment with Respondent in 2020 On November 30, 2020, M.V.S., a 68-year-old woman, had an initial neurology consult with Respondent at Orlando Health. M.V.S. sought a neurologist based on an abnormal MRI showing a cyst near her pituitary gland and complaints of neck pain radiating to her shoulder and arm. After filling out paperwork in the reception area, a medical assistant or nurse brought M.V.S. to an examination room. The room had an examination table, which could be lowered, a counter, and a chair. M.V.S. sat in the chair while the assistant took her vitals. Although M.V.S. has a history of blood pressure spikes, for which she has called 911 and even gone to the hospital several times, her blood pressure was within normal limits that morning. The assistant waited for M.V.S. to complete the paperwork and then left the room. Respondent entered the room a few minutes later and closed the door behind him. He wore green scrubs and a white lab coat; she wore a skirt, blouse, bra, and underwear. He and M.V.S. were alone for the remainder of the appointment. They initially discussed M.V.S.’s medical history and complaints. M.V.S. talked about her aunt, who had symptoms of Alzheimer’s disease and did not recognize her on a recent visit. She was concerned about the disease because she recently had forgotten some small details, like the name of an actor in a movie. M.V.S. did not believe she had significant memory issues, but she wanted research on the disease because it ran in her family. Respondent asked M.V.S. if she lived with anyone, which she interpreted as a question relating to her safety. She informed him that she lived alone within close proximity to a fire station. She also mentioned that her daughter lived in Orlando and her fiancé lived in Longwood. Respondent asked if she had sexual relations with her fiancé; she explained that they did not because her fiancé had prostate cancer. M.V.S. thought the question was odd given the reason for the appointment and because no other physician had ever asked that type of question before. Respondent moved on to M.V.S.’s complaints of neck pain. She explained that she experienced pain on the left side of her neck that radiated to her left shoulder and left arm. At that point, Respondent directed M.V.S. to sit on the table so he could examine her. While standing to M.V.S.’s left, Respondent rubbed and squeezed her neck and shoulders with his thumbs and fingers for a couple of minutes. No other doctor had examined her in that fashion before. He said she felt tense, but never asked if she experienced pain during the examination. She confirmed that it definitely felt like a neck and shoulder massage, which she had received many times. She noted that her cardiologist had recently palpated her neck for pain by using two fingers to poke and feel around, which was different than Respondent’s examination. Indeed, when a doctor palpates for pain, they typically use two fingertips to lightly press and prod in the trouble areas and obtain feedback from the patient about the level of pain. Respondent then examined M.V.S.’s spine while she stood in front of him. He thereafter examined her reflexes, eyes, and extremity strength while she sat on the table. He also conducted a memory test, which she passed. M.V.S. did not recall Respondent listening to her heart during the visit. At that point, Respondent directed M.V.S. to lie face-down on the table, which already was lowered. He asked if he could raise her skirt and she said, yes, because she believed it related to a muscular or skeletal examination. He raised her skirt and, over her underwear, rubbed her lower back and eventually moved down to her buttocks using both of his hands. He rubbed and squeezed both of her buttocks. She confirmed it felt like a deliberate, prolonged massage, which had never happened to her at a doctor’s office. Her mind raced, she felt frozen, and she could not believe what was happening. After one to two minutes, Respondent told her to sit up because he heard a voice. She sat on the end of the table and he began massaging and squeezing her right breast while standing on her right. He told her that he had never done this before and that she was beautiful. She thanked him in a low voice, but she was afraid and felt trapped because they were alone, there were no witnesses, and she was unsure of what he would do. Respondent asked if M.V.S. was comfortable with him massaging her breast and he stopped when she said no. He moved to her left side and explained that his wife would not have sex with him, so she permitted him to have sex outside the marriage. He asked if M.V.S. would meet him for sex and she declined. Respondent asked if that was because her fiancé would object, and she confirmed they had a commitment. At that point, Respondent pulled his lab coat back and said, “Look at this. Look what you did to me.” Respondent revealed his erect penis, which M.V.S. confirmed was clearly visible through his scrubs. Respondent told her to keep this between us, said his assistant would be in shortly with paperwork, and left the room. M.V.S. waited for about seven minutes and, when no one came, she left the room, tried to hold her composure, and checked out. She said nothing before leaving because she felt unsafe and was unsure if anyone would believe her anyway. M.V.S. turned on her car’s air conditioning and drank water to calm down. Her heart was pounding, and she feared having a blood pressure spike. As soon as she arrived home, M.V.S. called her daughter to tell her what happened. M.V.S.’s daughter, who is a nurse, told her to call the police. M.V.S. called the LMPD that afternoon. The officer with whom she spoke suggested that she file a complaint with the Department, which she did on December 6, 2020. Both the Department and the LMPD investigated the allegations, which included interviews of M.V.S. and Respondent.5 M.V.S. also reported the incident to Orlando Health risk management. The undersigned found M.V.S. to be a highly credible witness who testified passionately and definitively about Respondent’s inappropriate sexual behavior during the office visit. She immediately reported it to the LMPD and, within a week, filed complaints with both the Department and Respondent’s employer. M.V.S.’s testimony was clear, specific, detailed, compelling, and materially consistent with the interviews and statements she gave immediately following the visit. Respondent testified about his treatment of M.V.S., but—as he did with the S.R. and M.H.—he conceded he had little to no independent 5 Based on the information obtained from M.V.S. and Respondent, the LMPD placed the case into inactive status pending further evidence. recollection of her or the visit. Instead, he reviewed her medical records, which refreshed his recollection of what occurred during the visit. Respondent denied engaging in any inappropriate behavior with M.V.S. that could have been interpreted as sexual or outside the scope of a proper examination. He testified that he conducted a neurological examination, palpated her neck for pain, checked her reflexes, and conducted a memory test. He said he never massaged her neck and shoulders, touched or massaged her breasts or buttocks, discussed his marriage, solicited her to have sex, said she was beautiful, or revealed an erection through his scrubs. He also said she could not have laid face-down on the table because he never lowered the back or extended the footrest; he confirmed that he would have brought in a chaperone if he needed her to lie on the table. Respondent testified that M.V.S.’s accusations against him were the product of memory loss and cognitive impairment. Although M.V.S. reported a family history of Alzheimer’s and a fear of mild memory loss, Respondent documented that she performed well on her memory and cognitive examinations. M.V.S. and her daughter testified credibly that she did not experience significant memory loss beyond forgetting the name of an actor in a movie. Respondent himself confirmed that M.V.S. did not suffer from hallucinations or ailments that would cause her to perceive things that were not there—a point with which his expert neurologist agreed given the way Respondent documented the medical record. And, more importantly, M.V.S.’s ability to recall the specific details of the visit and do so consistently with the statements she made previously undermine Respondent’s belief that cognitive impairment caused her to fabricate her allegations. The weight of the credible evidence simply does not support the suggestion that M.V.S. misperceived, confabulated, or fabricated her allegations based on memory loss or cognitive impairment. Additionally, Respondent attempted to discredit M.V.S. by suggesting that she may have come onto him. Indeed, he testified that she was verbose and told him during their initial discussion about her history that her fiancé was older, that she was a 60s baby, and that she had not been touched in a while. Aside from M.V.S.’s credible testimony that she said no such things, it cannot be ignored that Respondent conceded that his memory of the visit was based on his review of the medical record, which contained no reference to these comments even though Respondent says they were odd. Respondent also presented evidence that M.V.S. had previously called 911 on multiple occasions relating to blood pressure spikes to undermine the veracity of her testimony. However, the recordings of the 911 calls reveal an individual who, despite being concerned about her blood pressure, is alert, aware of her surroundings, clear-headed, and in no way suffering from an illness that would raise doubts about the veracity of her testimony or her credibility overall. Based on the weight of the credible evidence, the undersigned finds that the Department proved by clear and convincing evidence that Respondent engaged in sexual misconduct with M.V.S. He inappropriately massaged her neck and shoulders, buttocks, and breast. He disclosed that he had an open marriage and solicited M.V.S. to meet him for sex outside the office. He also told her that she was beautiful and revealed his erection through his scrubs.
Conclusions For Petitioner: Kristen Summers, Esquire Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Jon M. Pellett, Esquire Pennington, P.A. 12724 Gran Bay Parkway West, Suite 401 Jacksonville, Florida 32258
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, issue a final order finding Respondent committed sexual misconduct prohibited by sections 458.331(1)(j), 458.329, and 456.063(1), suspending Respondent’s license for two years, and thereafter permanently restricting his license to either prohibit him from seeing female patients or, at a minimum, doing so without a chaperone present.7 DONE AND ENTERED this 28th day of October, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 28th day of October, 2021. 7 Section 456.072(4), Florida Statutes, provides that the Board, in addition to any other discipline imposed through final order, “shall assess costs related to the investigation and prosecution of the case.” Prior to the final hearing, the parties agreed to bifurcate the investigative costs issue (including Respondent’s argument that such costs should not be assessed because they are based on unpromulgated rules) pending resolution of the merits of the Amended Complaint. Upon further reflection, the undersigned concludes that resolving such an issue—even in a bifurcated proceeding—is premature because the Board has not yet issued a final order disciplining Respondent or followed the procedure in section 456.072(4), which requires it to consider an affidavit of itemized costs and any written objections thereto. It is in those written objections where Respondent may challenge the costs as being based on an unpromulgated rule. And, if Respondent’s written objections create a disputed issue of fact, the Department can transmit the investigative costs issue to DOAH to resolve that dispute, just as it did in Case No. 20-5385F. COPIES FURNISHED: Jon M. Pellett, Esquire Pennington, P.A. Suite 401 12724 Gran Bay Parkway West Jacksonville, Florida 32258 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Paul A. Vazquez, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 Kristen Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Elizabeth Tiernan, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
