01-000665PL Department Of Health, Board Of Medicine vs. Ghulam Mohammed, M.D. Status: Closed Recommended Order on Wednesday, February 6, 2002.

Summary: The evidence was insufficient to prove that Respondent exercised influence to engage a patient in sexual activity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 0665PL

)

GHULAM MOHAMMED, M.D., )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Notice was provided and on November 13 - 16, 2001, a formal

hearing was held in this case . The hearing location was the

Division of Administrative Hearings, The DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida. Authority for

conducting the hearing is set forth in Sections 120.569 and

120.57(1), Florida Statutes. Charles C. Adam s was the

Administrative Law Judge.

APPEARANCES

For Petitioner: Kim Kluck, Esquire

Agency for Health Care Administration

Fort Knox Building II, Suite 1100

2729 Fort Knox Boulevard, Mail Stop 39 - A

Tallahassee, Florida 32308 - 6287

For Respondent: John W. Black, Esquire

2155 Delta Boulevard, Suite 210 - A

Tallahassee, Florida 33602

STATEMENT OF THE ISSUE

Is Respondent subject to discipline for his actions in

relation to Patient J.N.?

PRELIMIN ARY STATEMENT

On January 22, 2001, an Administrative Complaint was

filed by the State of Florida, Department of Health against

Ghulam Mohammed, M.D., Case Numbers 1999 - 60445 and 2000 - 05509.

In addition to allegations concerning Patient J.N., the

Administr ative Complaint alleged impropriety in relation to

Patient K.C. 1

When provided an opportunity to elect his rights,

Respondent disputed the factual allegations in the

Administrative Complaint and sought a formal hearing. The

case was forwarded to the Div ision of Administrative Hearings

to conduct the formal hearing. The hearing took place on the

dates described.

In its case, Petitioner presented the testimony of

Patient J.N., Thomas Hicks, M.D., Geraldine Lundy, R.N.,

Patient J.N.'s husband, and Patie nt J.F., a "Williams Rule"

witness. 2 Petitioner's Exhibits 1 and 2 were admitted.

Respondent testified in his own behalf. Donna Marie

Schippers, M.D., Khalil Afsh, M.D., Wendi Brannen, C.N.A.,

Sharon Buford, Sandi Mazza, Willie Ann Dickey, Mildred Kelly ,

charge nurse, Tiffane Padgett, R.N., Deborah Mills, Amy

Millinor, and Robin Gray, L.P.N., testified for Respondent.

Respondent's Exhibits 2 through 6 were denied admission.

Respondent's Exhibit 7 was admitted. Respondent's Exhibit 8

was denied admissi on. Respondent's Exhibits 9 through 14 were

admitted. Ruling was reserved on the admission of

Respondent's Exhibit 1. It is a verified complaint in an

action in the Circuit Court of the Third Judicial Circuit, in

and for Taylor County, Florida, Case Num ber 2001 - 64CA, Civil

Action 01 - 64CA, naming Patient J.N. as Plaintiff and Ghulam

Mohammed, M.D., as Defendant. Having considered argument,

Respondent's Exhibit 1 is admitted in accordance with Section

90.608(1), Florida Statutes.

Upon request official recognition was made of Rules 64B8 -

8.001 and 64B8 - 9.008, Florida Administrative Code.

Consistent with a Pre - hearing Order, the parties

submitted a Joint Pre - hearing Stipulation. Through that

submission the parties agreed to admit Joint Exhibits 1

throug h 4, certain patient records. Joint Exhibits 2 and 4

were later withdrawn. Joint Exhibits 1 and 3 remain. During

the hearing the parties agreed to the admission of Joint

Exhibit 3A. Moreover, the parties stipulated to certain facts

and Respondent was d eemed by order to have admitted certain

facts propounded by Petitioner through discovery. Those

agreed facts and facts deemed admitted are available for fact

finding in the Recommended Order.

The hearing Transcript was filed on December 7, 2001.

The par ties were allowed until January 4, 2002, to submit

proposed recommended orders and associated argument. The

parties timely filed proposed recommended orders. In

addition, Petitioner submitted written argument. All of these

submissions have been consider ed in preparing the Recommended

Order.

FINDINGS OF FACT

Stipulated Facts and Admitted Facts :

1. Petitioner is the state agency charged with

regulating the practice of medicine pursuant to Section 20.42,

Florida Statutes, Chapter 456, Florida Statutes and Chapter

458, Florida Statutes.

2. Respondent is and has been at all times material

hereto, a licensed physician in the State of Florida, having

been issued License No. ME0063587.

3. Respondent rendered medical care and treatment to

Patient J.N.

Add itional Facts :

4. As of October 15, 1999, Patient J.N. had been

Respondent's long - standing patient. On that date she came to

Respondent's office in Perry, Florida, without an appointment.

Her principal purpose for the visit was to ascertain whether

she was pregnant. Although J.N. had no appointment, she was

seen by Wendy Brannen, C.N.A., who worked in Respondent's

office. Ms. Brannen administered a pregnancy test. The

results were negative. On the subject of the pregnancy test,

J.N. had commented to Ms. Brannen that if the results were

negative from the pregnancy test, that J.N. was interested in

obtaining diet pills to address weight gain not attributable

to pregnancy. Her weight on this visit, as confirmed by a

weigh - in, was not extraordinary.

5. When Ms. Brannen had concluded her preliminary

patient work - up concerning J.N.'s blood pressure, pulse,

respiration and temperature, J.N. was taken to Examining Room

5 within the office and left there. The door was open to the

examining room and remained open during the time J.N. was

there.

6. On October 15, 1999, Respondent saw J.N. in Examining

Room 5. While in the room he explained that the results of

the pregnancy test that had been administered on that day were

negative. He told J.N. that she was not gaining weight. J.N.

asked Respondent about diet pills. Respondent told J.N. that

she did not need diet pills, that she was not over weight. He

also mentioned an existing moratorium from the Board of

Medicine on the prescription of diet pills.

7. Contrary to the allegations in the Administrative

Complaint, the evidence was insufficient to prove that

Respondent "pulled J.N. by the arm and started kissing her and

then took her left hand and pressed it against his penis" or

that Respondent in any othe r manner engaged in conduct with

sexual overtones directed to Patient J.N. on the date in

question. This determination is made having in mind the full

hearing record, to include the "Williams Rule" evidence from

Patient J.F., who had been under Respondent 's care in the

past.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case in accordance with Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes.

9. Through the Adm inistrative Complaint Petitioner

accuses Respondent, in Count I, of violating Section

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

within a patient - physician relationship for purposes of

engaging a patient in sexual activity. Count II to the

A dministrative Complaint accuses Respondent of violating the

express prohibition against sexual misconduct that is stated

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

Florida Administrative Code, as violations of those provisions

demonstrate a violation of Section 458.331(1)(x), Florida

Statutes. Both Counts pertain to Respondent's involvement

with Patients K.C. and J.N.

10. Petitioner bears the burden to prove the allegations

made by clear and convincing evidence. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987). The term clear and convincing

evidence is defined in Slomowitz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

11. Petitioner has failed in its proof. No proof was

presented concerning the Patient K.C. The proof concerning

th e allegations pertaining to J.N. was not clear and

convincing.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered which dismisses the

Administrative Complaint.

DONE AND ENTERED this 6th day of February, 2002, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisi on of Administrative Hearings

this 6th day of February, 2002.

ENDNOTES

1/ Allegations pertaining to the Patient K.C. were not pursued

through Petitioner's proof at hearing.

2/ This testimony was allowed following a proff er. The

testimony was considered in accordance with Sections 90.404(2)

and 120.57(1), Florida Statutes and court cases cited by

counsel in written pleadings and in oral argument. The

proffer, the oral argument and ruling concerning use of the

"Williams R ule" evidence presented and the hearing testimony by

J.F. following her proffered testimony is set forth in the

final hearing transcript, forwarded with this Recommended

Order. The J.F. testimony concerning a collateral incident to

that associated with th e Patient J.N. in the present case was

allowed under the factors described as a similar plan, common

scheme or design.

COPIES FURNISHED:

John W. Black, Esquire

2155 Delta Boulevard, Suite 210 - A

Tallahassee, Florida 32303

Kim Kluck, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress way, Bin A02

Tallahassee, Florida 32399 - 1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.