00-003455PL Department Of Health, Board Of Medicine vs. Zafar S. Shah, M.D. Status: Closed Recommended Order on Tuesday, February 27, 2001.

Summary: Petitioner presented sufficient evidence to show that Respondent had violated the statutes and rules alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-3455

)

ZAFAR S. SHAH, M.D., )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a

formal hearing in this matter on November 8-9, 2000, in Dade

City, Florida.

APPEARANCES

For Petitioner: Robert C. Byerts, Esquire

Kim Kluck, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: A. R. Mander, III, Esquire

Greenfelder, Mander, Hanson,

Murphy and Dwyer

14217 Third Street

Dade City, Florida 33523

STATEMENT OF THE ISSUES

Did the Respondent commit the violations alleged in the

Administrative Complaint dated June 26, 2000, and, if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

By an Administrative Complaint dated June 26, 2000, and

filed with the Division of Administrative Hearings (Division)

on August 16, 2000, the Department of Health, Board of

Medicine (Board) is seeking to revoke, suspend, or otherwise

discipline Respondent's license to practice medicine in the

State of Florida.

As grounds therefor, the Board alleges that Respondent

violated: (1) Section 458.331(1)(t), Florida Statutes, by

failing to practice medicine with that level of care, skill,

and treatment which is recognized by a reasonably prudent

similar physician as being acceptable under similar conditions

and circumstances, with regard to a patient known as J.V.; (2)

Section 458.331(1)(j), Florida Statutes, by exercising

influence within a patient-physician relationship for purposes

of engaging a patient in sexual activity, with regard to a

patient known as J.V.; (3) Section 458.331(1)(x), Florida

Statutes, by violating an express prohibition against sexual

misconduct stated in Section 458.329, Florida Statutes, and

Rule 64B8-9.008, Florida Administrative Code, in his actions

with the patient known as J.V.; (4) Section 458.331(1)(t),

Florida Statutes, by failing to practice medicine with that

level of care, skill, and treatment which is recognized by a

reasonably prudent similar physician as being acceptable under

similar conditions and circumstances, with regard to a patient

known as A.C.; (5) Section 458.331(1)(j), Florida Statutes, by

exercising influence within a patient-physician relationship

for purposes of engaging a patient in sexual activity, with

regard to a patient known as A.C.; (6) Section 458.331(1)(x),

Florida Statutes, by violating an express prohibition against

sexual misconduct stated in Section 458.329, Florida Statutes,

and Rule 64B8-9.008, Florida Administrative Code, in his

actions with patient A.C.; (7) Section 458.331(t), Florida

Statutes, by failing to practice medicine with that level of

care, skill, and treatment which is recognized by a reasonably

prudent similar physician as being acceptable under similar

conditions and circumstances, with regard to a patient known

as T.R.; (8) Section 458.331(j), Florida Statutes, by

exercising influence within a patient-physician relationship

for purposes of engaging a patient in sexual activity, with

regard to a patient known as T.R.; (9) Section 458.331(1)(x),

Florida Statutes, by violating an express prohibition against

sexual misconduct stated in Section 458.329, Florida Statutes,

and Rule 64B8-9.008, Florida Administrative Code, in his

actions with patient T.R.; and (10) Section 458.331(1)(m),

Florida Statutes, by failing to keep legible, as defined by

department rule in consultation with the board, medical

records that identify the licensed physician or the physician

extender and supervising physician by name and professional

title who is or are responsible for rendering, ordering,

supervising, or billing for each diagnostic or treatment

procedure and that justify the course of treatment of the

patient, in that Respondent failed to document any information

to justify writing an antibiotic prescription for patient T.H.

By an Election of Rights filed with the Board, Respondent

denied the allegations contained in the Administrative

Complaint and requested a formal administrative hearing.

By letter dated August 1, 2000, the Board referred this

matter to the Division for the assignment of an Administrative

Law Judge and for the conduct of a formal hearing.

The Board presented the testimony of J.V., Deborah

Suckow, Liliane Gonzalez, Rebecca Steponaitis, and Clarice

Freese. The Board also presented the videotaped deposition of

Thomas Hicks, M.D., in lieu of his live testimony at the

hearing. The Board’s Exhibits 1 and 2 were admitted in

evidence. Respondent testified in his own behalf and

presented the testimony of Gloria Frum, Kelley Ann Pelfrey,

Virginia Demerails, Eloise Bortree, Anita Corwin and Doyle

Springfield. After hearing the testimony of Kelley Ann

Pelfrey, Virginia Demerails, Eloise Bortree, and Anita Corwin,

Petitioner's motion to strike their testimony was granted.

Respondent's Exhibits 1-3 were admitted in evidence.

Respondent's Exhibit 4 was marked for identification but was

not offered in evidence. Sections 458.305, 458.329, and

458.331, Florida Statutes and Rules 64B8-8.001 and 64B8-9.008,

Florida Administrative Code, were officially recognized. The

Final Orders and Recommended Orders in Department of

Professional Regulation v. James G. Robertson, M.D. , DOAH Case

No. 92-3310, Department of Professional Regulation v. Archbold

M. Jones, Jr., M.D. , DOAH Case No. 90-3591, and Department of

Professional Regulation v. William S. Piper , DOAH Case No. 89-

3670 are officially recognized.

During the course of the hearing, Respondent's counsel

made an ore tenus motion to withdraw as counsel for Respondent

with respect to the allegations contained in the Board's Case

No. 1999-59654 concerning patient T.H. based upon a conflict

arising from counsel's representation of two witnesses the

Board intended to present concerning T.H. Respondent's

counsel also made an ore tenus motion to sever that portion of

the Administrative Complaint concerning the Board's Case No.

1999-59654. Both motions were granted and an order was

entered on November 28, 2000, severing that portion of the

Administrative Complaint pertaining to the Board's Case No.

1999-59654, and a new file was opened by the Division and

assigned Division Case No. 00-4817PL. Also, during the course

of the hearing, the Board advised the undersigned that it had

no evidence to present in the Board's Case No. 2000-01665

pertaining to the allegations concerning Patient A.C.

At the conclusion of the hearing no deadline was

announced for the submission of proposed recommended orders,

which resulted in some confusion as to a date for the

submission of proposed recommended orders. A three-volume

Transcript of this proceeding was filed with the Division on

December 26, 2000. Petitioner timely filed its Proposed

Recommended Order under the 10-day submission date set out in

Rule 28-106.216(2), Florida Administrative Code. However,

because of the confusion concerning the submission of proposed

recommended orders, Respondent's Motion to Extend Time For

Filing Respondent's Proposed Recommended Order was granted

with the understanding that any time constraint imposed under

Rule 28-106.216(1), Florida Administrative Code, was waived in

accordance with Rule 28-106.216(2), Florida Administrative

Code, and that the Board would be allowed to file a response

to Respondent's Proposed Recommended Order if it considered a

response necessary. Respondent timely filed his Proposed

Recommended Orders under the extended time frame, and the

Board timely filed its response to Respondent's Proposed

Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

1. The Board is the agency charged with regulating the

practice of medicine in the State of Florida.

2. Respondent is and, at all times material hereto, has

been licensed to practice medicine in the State of Florida.

3. 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).

4. J.V. had appeared previously at Mid Town with

Gabriel Amparo, who also received medical care and treatment

from the physicians at Mid Town.

5. 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.

6. 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.

7. 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.

8. 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.

9. J.V. was advised that the female nurses had left for

the day. However, J.V. insisted that she be seen by the

physician.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. The standard of care for a pelvic examination

includes the use of gloves and the provision of a chaperone in

the examination room.

27. 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.

28. It is outside the standard of care for a physician

to manipulate external genitals with an ungloved finger as

part of a pelvic examination.

29. It is outside the standard of care to insert an

ungloved finger into the patient's vagina while performing a

pelvic examination.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

31. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). The Board has the burden

of proof in this proceeding. To meet its burden, the Board

must establish facts upon which its allegations are based by

clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern Company , 670 So. 2d 932 (Fla. 1996) and Sections

120.57(1)(j) and 458.331(3), Florida Statutes (2000).

32. Sections 458.331(1)(j)(t)(x)(2)(b)(c)(d)(f), Florida

Statutes, provide in pertinent part as follows:

Grounds for disciplinary action; action by

the board and department.-

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(j) Exercising influence within a patient

physician relationship for purposes of

engaging a patient in sexual activity. A

patient shall be presumed to be incapable

of giving free, full, and informed consent

to sexual activity with his or her

physician.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that

level of care, skill, and treatment which

is recognized by a reasonable prudent

similar physician as being acceptable under

similar conditions and circumstances . . .

As used in this paragraph, . . . "the

failure to practice medicine with that

level of care, skill, and treatment which

is recognized by a reasonably prudent

similar physician as being acceptable under

similar conditions and circumstances" shall

not be construed so as to require more than

one instance, event, or act.

* * *

(x) Violating any provision of this

chapter, a rule of the board or department,

or a lawful order of the board or

department previously entered in a

disciplinary hearing . . . .

* * *

(2) When the board finds any person guilty

of any of the grounds set forth in

subsection (1), . . . it may enter an order

imposing one or more of the following

penalties:

* * *

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on

probation for a period of time and subject

to such conditions as the board may

specify, including, but not limited to,

requiring the physician to submit to

treatment, to attend continuing education

courses, to submit to reexamination, or to

work under the supervision of another

physician.

(Emphasis furnished.)

33. Section 458.329, Florida Statutes, provides as

follows:

Sexual misconduct in the practice of

medicine.-The physician-patient

relationship is founded on mutual trust.

Sexual misconduct in the practice of

medicine means violation of the physician-

patient relationship through which the

physician uses said relationship to induce

or attempt to induce the patient to engage,

or to engage or attempt to engage the

patient, in sexual activity outside the

scope of the practice or the scope of

generally accepted examination or treatment

of the patient. Sexual misconduct in the

practice of medicine is prohibited.

(Emphasis furnished.)

34. Rule 64B8-9.008, Florida Administrative

Code, provides in pertinent part as follows:

(1) Sexual contact with a patient is

sexual misconduct and is violation of

Sections 458.329 and 458.331(1)(j),

Florida Statutes.

(2) For purposes of this rule, sexual

misconduct between a physician and a

patient includes, but is not limited to;

(a) Sexual behavior or involvement with a

patient including verbal or physical

behavior which

* * *

2. may reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. may reasonably be interpreted by the

patient as being sexual. (Emphasis

furnished.)

35. Clearly, J.V. failed to recall correctly all of the

details (such as when she gave the blood sample and the IUD

referral to Dr. Ferilta) of her visit to Respondent's office

on June 23, 1999. However, J.V. did not waiver in the

important part of her testimony concerning the procedure used

by Respondent in examining her on June 23, 1999. There is no

evidence that J.V. was being vindictive or somehow attempting

to coerce Respondent by bringing these charges. Likewise,

there is no evidence that J.V. had anything to gain by

bringing these charges. Furthermore, there is no evidence

that J.V. was being untruthful in her recitation of the

procedure used by Respondent in his examination of her on June

23, 1999. Respondent's attempt to introduce evidence as to

J.V.'s lifestyle and profession so as to discredit her

reputation for truth and honesty "just did not wash." On the

other hand, Respondent has a great deal to lose if the

allegations are proven.

36. The Board has demonstrated by clear and convincing

evidence that Respondent: (a) fondled or otherwise touched

J.V. in her vagina without washing his hands and without

wearing gloves and such conduct deviates from what a

reasonable and prudent physician would have done under similar

circumstances and is thereby subject to discipline under

Section 458.331(1)(t), Florida Statutes; (b) fondled or

otherwise touched J.V.'s genitalia which was outside the

standard of care and constituted sexual misconduct in the

practice of medicine in violation of Section 458.329, Florida

Statutes, and is thereby subject to discipline under Section

458.331(1)(j), Florida Statutes; and (c) having violated

Section 458.329, Florida Statutes, and Rule 64B8-9.008,

Florida Administrative Code, is thereby subject to discipline

under Section 458.331(1)(x), Florida Statutes.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit exceptions within 15 days

from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that

will issue the Final Order in this case.