01-003043PL Department Of Health, Board Of Medicine vs. Zafar Syed Shah, M.D. Status: Closed Recommended Order on Tuesday, March 19, 2002.

Summary: Respondent began sexual relationship with fellow employee prior to treating her as patient; evidence not clear and convincing that physician exercised influence within patient-physician relationship to engage patient in sexual activity; dismiss.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3043PL

)

ZAFAR SYED SHAH, M.D., )

)

Respondent. )

)

RECOMMENDED O RDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, the Division of Administrative

Hearings, on October 22, 2001, in Dade City, Florida.

APPEARANCES

For Petitioner: Robert C. Byerts, Esquire

Agency fo r Health Care Administration

2729 Fort Knox Boulevard

Mail Stop 39 - A

Tallahassee, Florida 32308 - 6287

For Respondent: Jack D. Hoogewind, Esquire

33283 Cortez B oulevard

Dade City, Florida 33523

STATEMENT OF THE ISSUES

Whether Respondent violated Section 458.331(1)(j), Florida

Statutes (2000), by exercising influence within a patient -

physician relationship for purposes of engaging a patien t in

sexual activity, and, if so, what penalty should be imposed.

Whether Respondent violated Section 458.331(1)(x), Florida

Statutes (2000), by engaging in a sexual relationship with

patient, T. R., and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 4, 2001, the Department of Health filed an

Administrative Complaint against Respondent, Zafar Shah, M.D.

The Administrative Complaint alleges that Respondent violated

Sections 458.331(1)(j) and (x), Florida Statutes, by engaging in

a sexu al relationship with Patient T. R. Respondent filed an

election of rights disputing the allegations of fact contained

in the Administrative Complaint and petitioning for a formal

administrative hearing before an Administrative Law Judge (ALJ)

appointed by the Division of Administrative Hearings (DOAH).

The case was forwarded to the DOAH and Judge Susan Kirkland was

initially assigned this cause. The case was set for hearing and

discovery followed.

On September 10, 2001, Petitioner moved for a continuan ce

of the hearing date, which the ALJ granted and a new date was

set. This matter as then transferred to the undersigned ALJ for

hearing.

On October 9, 2001, Petitioner moved for official

Recognition of Sections 458.329 and 458.331, Florida Statutes,

an d Rules 64B8 - 9.008 and 64B8 - 8.001, Florida Administrative

Code, and also moved for Official Recognition of the Final Order

in Department of Health v. Zafar S. Shah, M.D. , Case No. 2000 -

00502, Final Order dated April 10, 2001, both motions were

granted by O rder dated October 18, 2001.

On October 17, 2001, Respondent filed a Motion to Dismiss,

asserting that the allegations were based upon an

unconstitutional rule, to which Petitioner responded on

October 19, 2001.

The parties presented an oral Prehearing Stipulation

immediately prior to the commencement of hearing. At the

commencement of the hearing, argument regarding the Motion to

Dismiss was heard and the ruling on the Motion was reserved,

permitting the parties to present further argument in their

pro posed recommended orders, following the presentation of

evidence. Subsequent to the hearing, Respondent filed a

Petition to Challenge Existing Rule. Said case is designated

Zafar Shah, M.D. vs. Department of Health, Board of Medicine ,

DOAH Case No. 01 - 43 23RX. The Final Order in said cause has been

issued on this date.

At the hearing, Joint Exhibit 1, patient medical records,

was accepted by stipulation. Petitioner presented the testimony

of Patient T. R. and of Maria Rodriguez. Respondent testified

in his own behalf. At the conclusion of the hearing, the

parties agreed to a deadline of 30 days after the filing of the

transcript to file proposed recommended orders. The request was

granted. The Transcript was filed on January 7, 2002, and,

after the Tr anscript was filed, Petitioner moved to extend the

time to file proposed recommended orders and Respondent did not

object. The motion was granted and March 4, 2002, was set for

their submission. Petitioner filed its Proposed Recommended

Order on March 4, 2002, and Respondent filed his proposals on

March 5, 2002. Each have been given careful consideration in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is and has been at all times material hereto

a licensed medical physician in the State of Florida, having

been issued license number ME 0071706.

2. Respondent is Board - certified in Internal Medicine.

3. On or about October 20, 1996, Respondent began his

employment at Midtown Clinic (Midtown) in Zephyrhills, Florida,

as a physi cian. Another physician Dr. Ghani, owned and operated

Midtown. At that time, Respondent and Ghani were the only

physicians working at Midtown; there had been several other

doctors employed at Midtown prior to Respondent's employment.

An office administr ator, medical assistants (MAs) and other

staff also worked at Midtown in 1996.

4. T. R. worked as a medical assistant at Midtown, from

1994 until 1998. In 1996, T. R. was 28 years old, married, and

the mother of five children.

5. Employees at Midtown ro utinely received their primary

medical care from one of the physicians employed at Midtown.

Employees saw doctors at Midtown because they could not easily

take time off to go elsewhere. Employees would see whichever

doctor was not busy at the time. In a ddition, Midtown had an

insurance plan for its employees and the doctors employed there

could bill for their services.

6. As the newest physician, Respondent did not have as

many patients as Dr. Ghani, so Respondent saw most new patients;

and when Dr. G hani was busy, Respondent saw employees who were

generally treated by Dr. Ghani. Employees did not make

appointments to be seen by a doctor at Midtown for medical care.

However, employees had charts at Midtown, which contained

information on medical care provided to them.

7. On October 31, 1996, the employees of Midtown dressed

in Halloween costumes. T. R. dressed as a gypsy, with a red

skirt, her hair pulled back in a red bandana, and carried a

crystal ball. Respondent complimented T. R. several times ,

telling her that she looked good in red and that red was her

color. In the following weeks, Respondent began to make special

efforts to attract T. R.'s attention. In early December 1996,

on a bet with another employee, T. R. approached Respondent in

th e office and she asked if he had feelings for her. Respondent

replied in the affirmative.

8. After Respondent voiced his affection for

T. R., they began to flirt with each other at the clinic.

However, this conduct remained limited to the offices of Mi dtown

and did not occur outside the clinic until February of 1997.

9. T. R. testified that her marriage was experiencing

problems in late 1996 and early 1997; her husband often worked

late at night and worked long hours in general. T. R. talked to

Respon dent about her marital problems and she found Respondent

to be a good listener. Respondent made T. R. feel better in

general and raised her self - esteem.

10. Although the witnesses' testimonies are conflicting,

the most credible testimony is that T. R. an d Respondent first

had sex at his apartment shortly before Valentine's Day 1997.

In the ensuing months, the relationship between Respondent and

T. R. continued. Respondent and T. R. spent more time together,

going shopping, going out to eat and playing t ennis; and they

frequently had sex during this period. The affair ended,

sometime prior to August 20, 1997.

11. After the affair ended, Respondent began spending time

with T. R.'s entire family, including her husband C. R. He and

C. R. began playing te nnis together. Respondent would visit the

family in their home, and they would come to his home. Toward

the end of 1997, the entire family would stay at his residence

in Tampa on weekends, and he would stay at their home on

Thursday nights. This continu ed into 1998.

12. On or about August 20, 1997, T. R. came to the clinic

feeling ill; either Dr. Ghani or Respondent ordered a complete

blood count and laboratory studies for T. R. MAs at Midtown are

not authorized to draw blood for lab tests without an o rder from

a physician. Another MA, Maria Rodriguez, drew the blood from

T. R. for submission to the lab. Prior to drawing the blood

from T. R., Ms. Rodriguez confirmed from one of the doctors the

doctor's order to draw the blood. Ms. Rodriguez sent the blood

drawn from Patient T. R. to the lab. Respondent reviewed the

report of the lab results when it came back the next day, and

prescribed sample medications to treat Patient T. R.

13. On October 8, 1997, Patient T. R. presented to

Respondent at Midtown . Respondent listened to her chest with a

stethoscope and his preliminary diagnosis was that T. R. had a

heart murmur. Respondent told Patient T. R. that he thought

that she had Mitral Valve Prolapse. On October 8, 1997,

Respondent ordered an echocardio gram (ECG) for Patient T. R. and

wrote out and signed a prescription for her to receive it.

14. On October 9, 1997, Dr. Ahmed issued his report on the

results of the ECG. Respondent reviewed the report, along with

Dr. Ghani. Both physicians told Patient T. R. that she had

Mitral Valve Prolapse.

15. There is no credible evidence that Respondent rendered

medical services to T. R. prior to August 20, 1997.

16. The more persuasive evidence indicates that Dr. Ghani

was T. R.'s primary care physician from 19 94 until her

termination at Midtown in 1998.

17. The evidence is not clear and convincing that

Respondent exercised influence within a patient - physician

relationship for the purpose of engaging a patient in sexual

activity.

18. The evidence is not clear and convincing that

Respondent violated a provision of Chapter 458, Florida

Statutes, or a rule of the Board or Department by engaging in a

sexual relationship with Patient T. R.

19. Respondent has been the subject of previous

disciplinary action by the F lorida Board of Medicine. In

Department of Health v. Zafar S. Shah, M.D. , Case No. 2000 -

00502, Final Order, dated April 10, 2001, the Board of Medicine

revoked Respondent's license to practice medicine based upon

Respondent's failure to practice medicine with that level of

care, skill, and treatment which is recognized as being

acceptable under similar conditions and circumstances. This

case has recently been remanded to the Board following an appeal

to the First District Court of Appeal.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter pursuant to

Sections 120.569 and 120.57(1), Florida Statutes, and Section

456.073, Florida Statutes.

21. Petitioner has jurisdiction over Respondent's license

pursuant to Section 20.43 and Chapters 456 and 458, Florida

Statutes.

22. The burden of proof in this matter 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). Petitioner,

having filed the Administrative Complaint, has the burden of

proof in this proceeding. To meet its burden, Petitioner must

establish facts upon which its allegations are based by clear

and c onvincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

Company , 670 So. 2d 932 (Fla. 1996).

23. Section 458.331(1)(j) and (x), Florida Statutes,

provides in pertinent part, as follows:

458 .331 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.

* * *

(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

or failing to comply with a lawfully issued

subpoena of the department.

24. Section 458.329, Flori da Statutes, provides, as

follows:

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 i nduce 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 outside the scope of generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of

medicine is prohibited.

25. Rule 64B8 - 9.008, Florida Administrative Code, provides

in pertinent part:

64B8 - 9.008 Sexual Misconduct --

(1) Sexual contact with a patient is

sexual misconduct and is a 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 it is not limited to:

(a) Sexual behavior or involvement with a

patient including verbal or physical

behavior which

1. may reasonably be interpreted as

romantic involvement with a patient

regardless of whether such involvement

occurs in the professional setting or

outside of it;

2. may reasonably be interpreted as

intended for the sexual arousal or

gratification o f the physician, the patient

or any third party; or

3. may reasonably be interpreted by the

patient as being sexual.

26. Section 458.331(1)(j), Florida Statutes, contains a

statutory presumption. Therefore, the Florida Evidence Code is

applicable.

2 7. Section 90.301(2), Florida Statutes, provides:

"Except for presumptions that are conclusive under the law from

which they arise, a presumption is rebuttable." Rebuttal

presumptions are classified in Section 90.302, Florida Statutes,

as either:

(1) A presumption affecting the burden of

producing evidence and requiring the trier

of fact to assume the existence of the

presumed fact, unless credible evidence

sufficient to sustain a finding of

nonexistence of the presumed fact is

introduced, in which ev ent, the existence or

nonexistence of the presumed fact shall be

determined from the evidence without regard

to the presumption, or

(2) A presumption affecting the burden of

proof that imposes upon the party against

whom it operates the burden of proof

concerning the nonexistence of the presumed

fact.

28. Section 90.303, Florida Statutes, provides:

In a civil action or proceeding, unless

otherwise provided by statute a presumption

established primarily to facilitate the

determination of the particul ar action in

which the presumption is applied, rather

than to implement public policy, is a

presumption affecting the burden of

producing evidence.

29. Section 90.304, Florida Statutes, provides: "In civil

actions, all rebuttal presumptions which are no t defined in s.

90.303 are presumptions affecting the burden of proof."

30. The statutory presumption contained in Section

458.331(1)(j), Florida Statutes, involves a statement of public

policy which is further expressed in Section 458.329, Florida

Statut es, above quoted. Therefore, it is the type of

presumption described in Section 90.304, Florida Statutes, viz. ,

a statutory presumption affecting the burden of proof. As

stated by the court in Department of Agriculture and Consumer

Services v. Bonnano , 5 68 So. 2d 24, 31 (Fla. 1990):

When a presumption shifts the burden of

proof, the presumption remains in effect

even after evidence rebutting the

presumption has been introduced and the jury

must decide if the evidence is sufficient to

overcome the presum ption. (citation

omitted.) Presumptions which shift the

burden of proof in civil proceedings are

primarily expressions of public policy.

The rebuttable presumption imposes upon the party against whom

it operates the burden of proof concerning the nonexis tence of

the presumed fact. Section 90.304, Florida Statutes, and

Jennings v. Dade County , 589 So. 2d 1337 (Fla. 3rd DCA 1991).

31. In Bonnano the court cited with approval Caldwell v.

Division of Retirement , 372 So. 2d 438 (Fla. 1979), which

involved a statutory presumption that the disability occasioned

to a firefighter, who suffered a heart attack while on duty, was

incurred in the line of duty. In Caldwell the court stated at

372 So. 2d 441:

The statutory presumption is the

expression of a strong p ublic policy which

does not vanish when the other party submits

evidence. Where the evidence is

conflicting, the quantum of proof is

balanced and the presumption should prevail.

This does not foreclose the employer from

overcoming the presumption. Howev er, if

there is evidence supporting the presumption

the employer can overcome the presumption

only by clear and convincing evidence.

See City of West Palm Beach v. Burbaum , 632 So. 2d 145 (Fla. 1st

DCA 1994); Jones v. Crawford , 552 So. 2d 926 (Fla. 1st DC A 1989)

(simply submitting evidence creating a conflict did not rebut

the presumption).

32. The Florida Legislature has repeatedly demonstrated

how it authorizes the use of presumptions in administrative

proceedings when it intends a supervising agency to rely on

legal presumptions as establishing grounds for disciplinary

sanctions against a licensee. McDonald v. Department of

Professional Regulation, Bd. of Pilot Com'rs , 582 So. 2d 660

(Fla. 1st DCA 1991)(citing, among other statutes, Section

458.331(1)( j), Florida Statutes). Such statutorily authorized

presumptions may be applied in administrative proceedings to

carry the agency's burden of proof, see , e.g. , Caldwell v.

Division of Retirement , 372 So. 2d 438 (Fla. 1979), and may be

relied on in agency d isciplinary cases to meet the clear and

convincing evidence standard, see , e.g. , Ayala vs. Department of

Professional Regulation , 478 So. 2d 1116 (Fla. 1st DCA 1985).

33. Respondent asserts that Patient T. R. was Dr. Ghani's

patient and was never his pat ient. He asserts that a patient -

physician relationship never existed between him and Patient

T. R. In Agency for Health Care Administration, Board of

Medicine vs. Philip William Lortz, M.D. , DOAH Case No. 96 - 0793

(Final Order dated October 30, 1996), th e Board of Medicine

adopted Judge Hood's conclusion that a physician/patient

relationship is established when a physician reviews medical

examination paperwork and performs a physical examination in a

patient's home. In Department of Professional Regulati on, Board

of Medicine vs. Archbold N. Jones, M.D. , DOAH Case No. 90 - 3591

(Final Order dated November 29, 1990), the Board adopted Judge

Parrish's conclusion that a physician practices medicine when he

phones in a prescription for a patient.

34. As in Jone s and Lortz , the evidence in this case

establishes that Respondent: most likely ordered the blood test

August 20, 1997, reviewed the report of the lab results the next

day, and prescribed sample medications to treat Patient

T. R. Respondent thereby enga ged in the practice of medicine

with Patient T. R. and established a physician - patient

relationship with her at that time. In addition, Respondent

examined Patient T. R. at Midtown on October 8, 1997; discovered

a heart murmur; prescribed a diagnostic tes t to evaluate this

condition; and evaluated the results of that test with Dr.

Ghani, thereby engaging in the practice of medicine, and re -

establishing Patient T. R. as a patient.

35. Petitioner's burden of proof in this case is to

demonstrate, by clear an d convincing evidence, that (Count One)

Respondent exercised influence within a patient - physician

relationship for purposes of engaging Patient T. R. in sexual

activity and, that (Count Two) Respondent violated the

physician - patient relationship by committ ing sexual misconduct,

resulting in violation of Section 458.329, Florida Statutes, and

the Board of Medicine Rule prohibiting sex with patients.

36. The evidence is clear and convincing that Respondent

and Patient T. R. had sex beginning in February of 1 997 and

that the relationship terminated prior to August 20, 1997. The

testimony of Patient T. R. and Maria Rodriguez is not credible

that the sexual activity continued between Respondent and

Patient T. R. after the physician - patient relationship was

est ablished. Since the evidence is not credible that sexual

activity occurred between Respondent and Patient T. R. during

the physician - patient relationship, the presumption that Patient

T. R. was incapable of giving free, full, and informed consent

to sexua l activity with Respondent never arose, and, if it did

arise, it has been overcome. City of Temple Terrace v. Barley ,

481 So. 2d 49 (Fla. 1st DCA 1985). The evidence in clear and

convincing that, under the facts and circumstances of this case,

the sexual activity between Respondent and T. R. did not result

from improper exploitation or abuse of authority and trust.

37. Further, Petitioner did not present clear and

convincing evidence that Respondent used the physician - patient

relationship to induce or at tempt to induce T. R. to engage, or

attempt to engage, in sexual activity outside the scope of the

practice or to outside the scope of generally accepted

examination or treatment of the patient, as required by Section

458.329, Florida Statutes.

RECOMMENDA TION

Based upon the foregoing, it is hereby

RECOMMENDED that the Department of Health, Board of

Medicine adopt the foregoing Findings of Fact and Conclusions of

Law, and enter a final order dismissing the Administrative

Complaint.

DONE AND ENTERED this 19t h day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2002.

COPIES FURNISHED :

Robert C. Byerts, Esquire

Agency for Health Care Administration

2729 Fort Knox Boulevard

Mail Stop 39 - A

Tallahassee, Florida 32308 - 6287

Jack D. Hoogewind, Esquire

33283 Cortez Boulevard

Dade City, Florida 33523

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Flor ida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 170 1

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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 Or der in this case.