14-002488PL Department Of Health, Board Of Medicine vs. Albeert Esmailzadeh, M.D. Status: Closed Recommended Order on Wednesday, November 19, 2014.

Summary: Sufficient evidence exists for termination of Respondent's license to practice medicine in Florida.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case Nos. 14 - 1342PL

14 - 1343PL

ALBERT ESMAILZADEH, M.D., 14 - 2488PL

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on September 23 - 2 6, 2014, in Viera,

Florida, before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEA RANCES

For Petitioner: Alicia E. Adams, Esquire

Daniel Hernandez, Esquire

Judson Searcy, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respo ndent: Gregory W. Eisenmenger, Esquire

Eisenmenger, Berry and Peters, P.A.

5450 Village Drive

Viera, Florida 32955

STATEMENT OF THE ISSUE S

The issues in this case, as set forth in the Prehearing

Stipulation, are as follows:

i. Whether Respondent was terminated

from the State Medicaid Program; [Case

No. 14 - 2488, Count I]

ii. Whether Respondent failed to update

his practitioner profile within fifteen days

of the filing of the order terminating him

from the State Medicaid Progra m; [Case

No. 14 - 2488, Count II]

iii. Whether Respondent exercised

influence within the patient - physician

relationship with T.J. [ 1/ ] for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

T.J.; [C ase No. 14 - 1342, Counts I & II]

iv. Whether Respondent exercised

influence within the patient - physician

relationship with M.B. for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

M.B.; [Case No. 14 - 13 43, Counts I & II]

v. Whether Respondent exercised

influence within the patient - physician

relationship with C.J. for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

C.J.; [Case No. 14 - 1343, Counts I & II]

vi. Whether Respondent exercised

influence within the patient - physician

relationship with D.K. for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

D.K.; [Case No. 14 - 1343, Counts I & II]

vii. Whether Respondent exercised

influence within the patient - physician

relationship with A.H. for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

A.H.; [Case No. 14 - 1343, Counts I & II] and

viii. Whether Respondent exercised

influence within the patient - physician

relationship with S.D. for the purposes of

engaging in sexual activity and/or whether

Respondent engaged in sexual conduct with

S.D. [Case No. 14 - 1343, Counts I & II]

PRELIMINARY STATEMENT

This case involves the Administrative Complaints in three

separately filed actions: DOAH Case Nos. 14 - 1342PL, 14 - 1343PL,

and 14 - 2488PL. The cases were consolidated for purposes of

conducting a single final hearing to address all issues within

the three Admin istrative Complaints.

At the final hearing, the Department presented the testimony

of twelve witnesses: Respondent, Dr. Albert Esmailzadeh; patient

M.B.; patient D.K.; patient T.J.; patient A.H.; Gary Pachkoski,

site operations manager; Patty Knapp, patie nt advocate;

Roberta ÐBobbiÑ McDonald, medical assistant; Lizamar Korfhage,

physicianÓs assistant; Derek Middendorf, police officer;

Cathy Bird (who testified over objection via telephone);

Dr. Richard Hynes; and, via deposition transcripts: patient

C.J. , Michael West, JoAnn Trexler, and Dr. Jonathan Waldbaum.

The Department's E xhibits 1 - 8 and 31, and Joint Exhibits 1 - 5 were

admitted into evidence. Respondent also called twelve witnesses:

Rachel Jeppesen, radiology technician; Dr. Farhan Zaidi;

Kerri Her zog; Michelle Morrell, instrument technician; former

patients E.A., V.N., D.B., J.M., and K.Z.; Sally Ruiz, medical

assistant; Noemi Camacho, receptionist; and Respondent,

Dr. Albert Esmailzadeh, on his own behalf. RespondentÓs E xhibits

1 - 6 were admitted into evidence.

The parties advised that a transcript of the final hearing

would be ordered. By rule the parties have 10 days from the date

the transcript is filed at DOAH to file proposed recommended

orders. The T ranscript was filed on October 20, 2014. Both

Petitioner and Respondent timely filed a proposed recommended

order and each was duly considered in the preparation of this

Recommended Order.

The following findings of fact were made based upon the

evidence and testimony presented by the parties at the final

hearing in this matter.

FINDINGS OF FACT

1. Petitioner, Department of Health, Board of Medicine (the

ÐDepartmentÑ) is the State agency responsible for licensing and

monitoring physicians in the State of Florida. The Department

regulates the pra ctice of medicine in accordance with section

20.43 and chapters 456 and 458, Florida Statutes. Unless

specifically stated otherwise herein, all references to Florida

Statutes will be to the 2014 codification.

2. Respondent is a licensed Florida physicia n, certified in

the area of pain management, holding license number ME 97134. At

all times relevant hereto, Respondent was practicing medicine at

one of two locations: the Back Authority for Contemporary

Knowledge, (a pain management clinic known as the ÐBack CenterÑ

located in Melbourne, Florida); and Advantacare (in its Altamonte

Springs and Daytona Beach offices). Respondent was employed at

the Back Center from January 2008 through September 2011, and at

Advantacare from March 2012 through April 2013.

3. Respondent provided pain management services for

numerous patients during his tenure at each of the clinics.

While at the Back Center , he saw 50 to 60 patients per day in an

8 - hour workday, doing about 15 medication injections per day. At

Advantacar e he was seeing about 30 patients per day. By all

accounts, Respondent is a skilled and proficient pain management

physician.

4. At Advantacare, Respondent would see patients for

regular office visits at the Altamonte Springs office on Monday,

Tuesday, Thursday, and Friday; Wednesday would be set aside for

administering injections under a fluoroscope, described as sort

of a C - shaped X - ray machine, performed at the Daytona Beach

office. None of the sexual behavior alleged in the

Administrative Complaints occurred during injections performed

under fluoroscope.

5. A general policy existed at the Back Center that

required physicians to have another facility employee (medical

technician, nurse, other) present in an examination room when a

physician was provi ding care to a patient not of the same gender

as the doctor. This ÐchaperoneÑ policy is standard in the health

care industry. There is no credible evidence that Respondent was

ever shown the Back CenterÓs policy in writing, although it is

probable the po licy was accessible on the website of the entity

(Osler Corporation) that owned the Back Center for a period of

time. As a practicing physician, Respondent was also presumed to

be aware of and to follow the chaperone policy and he admitted

knowing about t he policy in general. Respondent was, however,

verbally apprised of the policy by his supervisor, Dr. Hynes, by

the clinic operations manager, Mr. Pachkoski, and by the chief

administrative officer, Cathy Bird.

6. Respondent acknowledged that it was be st to have another

person in the examination room if he was providing treatment to a

female patient. If no chaperone was available, it was his stated

practice to keep the door open. Respondent did not feel like

assistants were always available to chapero ne, but neither his

supervisor (Dr. Hynes) nor a co - physician (Dr. Zaidi) remembers

Respondent complaining that staff was not available at the Back

Center. The testimony of all six complainants in this case

contradicts RespondentÓs contention; each of the m said they were

treated by Respondent (alone) in a room with the door closed.

When asked directly whether he ever treated female patients at

the Back Center in a room with the door closed, Respondent

admitted that it happened on occasion. The best and m ost

persuasive evidence in this case is that a chaperone policy did

exist and that Respondent did not follow the policy.

7. Between September 2008 and January 2013, Respondent

treated six female patients who are the subjects of the

DepartmentÓs Administra tive Complaint. Each of the patients is

identified only by their initials in an attempt to maintain their

confidentiality and privacy. The six patients will be addressed

in chronological order based on the dates of their alleged

mistreatment by Responden t.

Patient S.D.

8. Patient S.D. was a patient of Respondent between

September and December 2008. S.D.Ós status as a patient was

stipulated to by the parties. 2/ While she was RespondentÓs

patient, S.D. was also an employee of the Back Center. During

t he period of time Respondent was treating S.D., they engaged in

a series of emails which could be construed as very sexual in

nature. For example, on September 23, 2008, Respondent and S.D.

had the following email exchange:

S.D. Î ÐYou buying DinnerÈ.Or a m I your

[f***ing] dinner????Ñ

Respondent Î ÐWhat do you think? I want u as

breakfast, lunch and dinner. My precious

love.Ñ

S.D. Î Ok so what am I going to eat LOL???

Let me guess a protein shakeÑ

Respondent Î ÐIf I shake it hard enough yes.Ñ

Then, on September 25, the two had this email exchange:

Respondent Î ÐNO I WANT U TO FEED ME!!! AND

NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!!

IÓM UR MAN AND I SAY NO.Ñ

S.D. Î ÐThen act like it and stop flirting

with the [f***ing] skank!Ñ

Respondent Î ÐWHY? GET TING JEALOUS

SWEETHEART?Ñ

S.D. - ÐNo I guess I have no reason to be.Ñ

Respondent Î ÐEXACTLY, YOU HAD ME AT LUNCH

AND LEFT TO GO TO WORK. SO YOU CANÓT SAY

ANYTHING, PRECIOUS.Ñ

9. Respondent denies that the exchange of emails with S.D.

suggests anything o f a sexual nature. He said, e.g., that in his

Iranian culture, talking about eating someone was tantamount to

saying you cared deeply for them. RespondentÓs denial of the

sexual nature of the emails is not persuasive.

10. S.D. did not testify at final hearing nor was her

testimony preserved by way of a deposition transcript. The

Department offered into evidence an exhibit comprised of various

emails between S.D. and Respondent, two of which were discussed

above. At least one co - worker, Lizamar Korfhag e (a physicianÓs

assistant at the Back Center) , heard S.D. yell loudly in the

office -- as S.D. was being terminated from employment -- that she

(S.D.) and Respondent were having sexual relations. Cathy Bird,

former chief administrative officer at the Back Ce nter, had

discussed the alleged affair with S.D. during several

conversations before S.D. 's employment with the Back Center

ended . Bird also talked with Respondent about the situation

after S.D. was fired from the Back Center. Respondent was

concerned th at S.D. would tell RespondentÓs wife about the affair

and sought BirdÓs guidance in the matter.

11. Based upon the entirety of the clear and convincing

evidence presented, Respondent was involved in a sexual

relationship with S.D. at some point in time when S.D. was also a

patient of the Back Center.

Patient T.J.

12. Patient T.J. was a 37 - year - old patient when she saw

Respondent at the Back Center on October 29, 2010. T.J. had seen

Respondent professionally some 16 or so times previously. No

inappro priate conduct had occurred on any of those visits. On

the October 29 visit, T.J. was escorted into an examination room

by a nurse as usual. Respondent came in and, after examining

her, suggested that trigger point injections might help alleviate

her pai n, which she described as being a Ð2Ñ on a scale of 1 to

10. 3 / She agreed to the plan of treatment. Respondent had T.J.

sit on an armless stool and lean her arms and head onto a desk.

Respondent stood on her left side and began administering

injections into her neck. As he leaned against her body, T.J.

felt what she described as RespondentÓs erect penis rubbing on

her upper arm or shoulder. She felt like Respondent was

intentionally rubbing her in what she later concluded to be a

sexual manner. When h e finished the injections, Respondent did

not act any differently than usual. T.J. felt like something

ÐweirdÑ had just happened, but decided not to report it because

she was not completely sure about her perceptions. Respondent,

in contradiction to T.J. Ós testimony, said he generally stayed

four to five inches away from his patient when administering the

injections, but would sometimes come into contact with them.

13. T.J. returned for a follow up visit on November 24,

2010, receiving another injection by Respondent. She reported no

misconduct by Respondent on that date. On December 23, 2010,

T.J. returned to the Back Center for additional treatment. This

time, her pain was radiating all the way down to her buttocks

area and was described as a Ð3Ñ out of 10. She was again

escorted to an examination room to wait for Respondent.

Respondent came in and closed the door, as was his usual practice

during T.J.Ós visits. After examining her, Respondent suggested

injections for sacroiliac joint pain. T.J. w as told to lie on

the examination table on her left side. Respondent had T.J.

lower her jeans to just below her knees. She had her left leg

out straight and her right leg bent at the knee and across her

left leg. Respondent then began to press his finge rs on

different parts of her inner thigh searching for the source of

her pain. The pain was centered between her knee and buttocks

area, and Respondent made an injection in that area. Respondent

then had T.J. roll over to her right side as he pulled the table

slightly away from the wall and placed himself between the wall

and the table. Respondent began pushing on her inner thigh

again, starting at her knee and moving upward toward her

buttocks. As he did that, his tone of voice changed and he began

pan ting. He continued to touch and probe her thighs as his hands

went higher until he ultimately touched her vagina. T.J.

immediately said, ÐThatÓs itÑ and quickly got off the examination

table and pulled up her jeans. Respondent appeared sweaty and

red - fa ced, looking to T.J. like a person who had just engaged in

sex.

14. T.J. then began to consider whether RespondentÓs

behavior during the October 29, 2010 , visit had indeed been

sexual in nature as well. She concluded that it was, and decided

not to see Respondent for treatment in the future . She did not,

however, report either of the incidents to the Back Center

immediately. She ultimately did so , telling physician's

assistant Korfhage about the incident some 10 months later.

After seeing a report on television in 2013 that Respondent had

been accused by another patient of sexual misconduct, she decided

to make a report to the police about her own experience s with

Respondent . When the police did not prosecute, she contacted an

attorney in order to fi le a civil action against Respondent.

15. T.J. appeared to be honest and forthright during her

appearance at final hearing. Her testimony about her version of

the events was credible, clear, and convincing. In his testimony

at final hearing, Respondent did not specifically refute T.J.Ós

testimony so much as he explained how his normal process would

not allow for the kind of touching T.J. alleged to have occurred.

Respondent did not specifically or directly deny touching patient

T.J.Ós vagina, saying on ly that there would be no reason to do

so.

Patient D.K. (also known as D.W.)

16. D.K. was a regular patient of Respondent and the Back

Center. She had an appointment on January 13, 2011, to see

Respondent for pain she was experiencing in her lower back and

sides.

17. On previous visits to the Back Center, Respondent had

done localized injections to help D.K. deal with the pain. On

those visits, she had simply rolled her pants down below her

waist and leaned against the examination table in order for

R espondent to do the injections. On the January 13 visit, she

was told to lie on the table and pull her jeans down to her knees

while Respondent went to prepare the medications. Respondent

returned, closing the door as he came into the room.

18. Respond ent began injecting medications into her back

and both sides. He then moved lower and administered injections

into her thighs although she had not complained about any pain in

that area. Respondent then moved her jeans down to her ankles

and began admini stering injections into her calves. While he was

injecting her, she felt him rubbing his erect penis against her

thighs and heard his breathing get heavier. She could also feel

Respondent lean closer to her and felt his breath on her thighs

as he injecte d her calves. After the injections were complete,

D.K. said Respondent was sweating, flushed, and Ðlooked like my

husband after weÓve had intercourse.Ñ

19. D.K. left the office and returned to her car. She

immediately began to mentally process what had occurred to her,

but did not immediately tell anyone at the Back Center. She was

shocked and upset by the event but waited a few days before

telling her husband what had happened. She then reported the

events to someone at the Back Center. The Back Cen ter asked her

to come in so she could discuss the situation with Dr. Hynes,

medical director of the Back Center. Later, D.K. made a

complaint to local law enforcement about the incident. D.K. has

also contacted an attorney to look into filing a civil law suit

against Respondent.

20. In response to the complaint by D.K., Dr. Hynes

mandated that Respondent have a medical assistant with him during

any contact with female patients. Despite the prohibition,

Respondent continued to see female patients in an ex amination

room without others present. He was confronted several times by

the site operations manager about this violation, but Respondent

did not change his behavior.

21. D.K. was a credible witness. She provided a clear and

unequivocal description of what transpired during her visit to

the Back Center on January 13, 2011.

Patient C.J.

22. Patient C.J. presented to the Back Center experiencing

pain as a result of shrapnel wounds received while she was

serving in the U.S. Army in Afghanistan. C.J. d id not testify at

final hearing so her physical demeanor could not be assessed.

Her deposition transcript was admitted into evidence over

objection.

23. In May 2011 , C.J. was referred to the Back Center by

her treating physician at Patrick Air Force Base . She took the

referral, called the Back Center, and was assigned to Respondent

for pain management services.

24. C.J. went to the Back Center on May 4, 2011. She was

experiencing significant pain and was physically uncomfortable.

C.J. was processed i n by a receptionist and then led to an

examination room by a female employee. The employee took C.J.Ós

blood pressure, gathered some personal information, and left the

room. On that date, C.J. was wearing jeans, a blouse, and open -

toed shoes. She had on Ðfull underwearÑ that day.

25. Respondent came into the room and examined C.J. as she

sat on the examining table. He advised C.J. that an injection

might benefit her. As C.J. remembered it, the injection was to

be in the side of her neck, and then in h er back or hip.

Respondent left the room to obtain the medications as C.J.

waited.

26. Upon his return to the room, Respondent injected Depo -

Medrol 40 mg, Toradol 30 mg, L idocaine 2% 0.5 mL, and Marcaine

0.5 mL into the left side of her neck. After the initial

injection, Respondent left the room while the medication took

effect. C.J. began to feel very relaxed and sleepy. Respondent

recollects that C.J. complained of feeling light - headed, but does

not believe any medication he injected would have caused that to

happen. Respondent later returned to the room and prepared to

give C.J. an other injection into her hip area. She sat up on the

table as Respondent pulled one end of the table slightly away

from the wall. 4 / After moving the table, Respondent had C.J. lie

down on her side, lift her blouse, and unbuckle her jeans. She

then slid her jeans and underwear down past her hips as directed.

27. At that point, Respondent began injecting a solution

into C.J.Ós hip. As the injection was proceeding, she fe lt

Respondent slide his hand over her hip and Ðin my groin area.Ñ

While doing that, RespondentÓs crotch was pressed against C.J.Ós

buttocks. C.J. felt what she believed to be RespondentÓs erect

penis pushing against her buttocks as he administered the

in jection.

28. After the injection was completed, Respondent came

around from behind the table and told C.J. she would need to come

see him again in a few weeks. C.J. got up from the table and

began to realize that Ðsomething was not rightÑ about the

trea tment she had just received. When C.J. went to the front

desk to check out, she asked a nurse to identify the medications

which had been injected but was unable to get that information.

C.J. then left the Back Center and immediately called her nurse

case manager at Patrick Air Force Base to report what had

occurred. Her nurse advised C.J. to call 911 to report the

incident; C.J. did so as she walked out to her car in the parking

lot. A policeman arrived some 20 minutes later and took her

statement. The officer then went inside to talk to Respondent.

He said Respondent appeared to be surprised and shocked by C.J.Ós

allegation. The police decided not to file any charges against

Respondent based on C.J.Ós complaint. The reporting police

officer (Middend orf) seemed to question C.J.Ós veracity or

truthfulness on the day of the incident. He said C.J. was upset

and seemed lethargic, except when she was talking on the

telephone to Ðone of her superiors.Ñ According to Middendorf,

C.J. acted consistent with s omeone who may be under the influence

of drugs. He did acknowledge that C.J. had just come out of a

pain management clinic. Middendorf also felt C.J. was either

confused or not telling the truth concerning where Respondent had

allegedly touched her. C.J ., who was obviously distraught at the

time, indicated both her pubic area and her outer thigh when she

told Middendorf that Respondent had touched her Ðgroin.Ñ

Middendorf challenged her about that and C.J. became defensive

and argumentative. He did not provide any credible testimony as

to why he believed she might be lying to him. His statement that

C.J.Ós voice changed when she was talking to her office on the

phone is not conclusive evidence that she was not telling him the

truth.

29. C.J. never retu rned to the Back Center. She obtained

pain management treatment elsewhere.

30. Inasmuch as C.J.Ós demeanor could not be judged because

she did not appear in person, her testimony must be considered

using other factors. In this case, the testimony was v ery

similar to the facts described by other patients of Respondent

concerning their treatment by him. The events as described by

C.J. were believable and convincing, especially when compared to

the allegations by other alleged victims. Neither C.J. nor a ny

of the other alleged victims/complainants has talked to other

alleged victims about their experiences, so there does not appear

to be any collusion between the victims.

Patient M.B.

31. Patient M.B. was already a regular patient at the Back

Ce nter when she first saw Respondent on July 7, 2011.

RespondentÓs notes in M.B.Ós chart indicate the patient was

presenting for Ðinitial evaluationÑ that day, but that was not

correct; she had already been seen several times by other

physicians at the Back Center. M.B. had chronic lumbalgia (low

back pain) a nd lower extremity dysesthesia (a burning sensation)

w hich was increasing progressively. Respondent examined M.B.,

discussed his findings, and scheduled a follow - up appointment for

August 2, 2011, at w hich time he gave her an injection of 1%

Xylocaine with approximately 30 ml of L idocaine 1% on both of her

side hip s. He also injected a block with a solution containing 2

ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo -

Medrol 80 mg into M.B.Ó s joints. M.B. reported no suspicious or

untoward behavior by Respondent during the Jul y 7 and August 2

appointments.

32. On August 29, 2011, M.B. returned to see Respondent.

She presented with pain in her hips and left side. Nurse Bobbi

McDonald esco rted M.B. to the examination room and took her vital

signs before leaving. Respondent came into the room, alone, and

closed the door. At that visit, M.B. was wearing khaki mid - thigh

cargo shorts, a blouse that tied around her neck, and bikini

underwear. Respondent asked about her pain, touched points on

her body to identify the exact pain locations, and adjusted her

back manually. He then suggested injection of a steroid as a

stop - gap measure prior to scheduling her for a fluoroscope

injection later. M .B. agreed to the plan. Respondent left the

examination room to get the medication. When he returned, he was

alone and again he closed the door.

33. Respondent told M.B. to pull her shorts down below her

waist and to cover herself with a paper gown. S he pulled her

shorts and underwear down about halfway across her buttocks,

which was lower than she would normally pull them for fluoroscope

injections. Respondent began to clean the area for the injection

and asked M.B. to pull her garments down further, below her

buttocks. Respondent then pulled the table out from the wall and

he went between the table and the wall. He injected M.B.Ós hip

about five times with a solution containing Depo Medrol 80,

Toradol 60, L idocaine, and Marcaine 1 ml. As he inject ed her,

M.B. could feel RespondentÓs groin touching her hip. She could

feel what she believed to be RespondentÓs erect penis rubbing

against her in a back and forth motion. By this time, her paper

gown had fallen off, exposing her buttocks and vaginal ar ea.

After the last injection, M.B. felt RespondentÓs fingers touching

her vagina. As she pushed upward to get off the table, M.B. felt

Respondent touch her vagina again. She got off the table, pulled

up her pants, and sat down as the doctor began talkin g to her.

M.B. did not say anything to Respondent. She immediately

believed that she had been sexually assaulted, but was too

confused and shocked to say anything to anyone.

34. M.B. did not initially report RespondentÓs behavior to

the Back Center. She later reported her allegations to the

Melbourne Police Department and also filed a civil lawsuit

against Respondent and the Back Center. (M.B. would continue to

return to the Back Center, but did not see Respondent again for

any of her treatments.)

35 . M.B.Ós testimony was not as immediately believable as

that of some of the other witnesses. Based on her personality,

fear of the process, or some other factor, she seemed to be

fairly emotionless in describing the incident. However, inasmuch

as her te stimony was corroborated by what other patients had

experienced, her clearly enunciated statements are convincing.

Further, M.B. exhibited extreme visual cues as to her intense

dislike for Respondent at the final hearing. The testimony of

M.B. alone woul d not be clear and convincing evidence of any

wrongdoing by Respondent. However, her testimony is

corroboration of and support for the testimony of other victims.

36. Respondent's employment at the Back Center was

terminated shortly after M.B.'s appoin tment with him. There is

no evidence as to Respondent's employment from September 2011

until he went to Advantacare in March 2012.

Patient A.H.

3 7 . Patient A.H. presented to Advantacare (Daytona Beach

office) on January 9, 2013, in an effort to address p ain she was

suffering as a result of an automobile accident that occurred in

October 2012. She wanted to reduce her pain while also reducing

the amount of medications she was taking. A.H. had a job which

required driving, so she needed to be as drug - free as possible.

3 8 . A.H. was escorted to the examination room. She

remembers that Respondent came in, closed the door, and propped

it shut. Respondent remembers the door to that room being open,

that it would open by itself unless something was placed ag ainst

it. The medical technician assigned to Respondent said the door

did not have any problems, but it would always be half open.

There is no corroborated evidence as to whether the door to the

room was open, closed, or ajar when A.H. was being examined .

3 9 . Respondent examined A.H. and began to show her some

exercises and stretches that he thought might alleviate some of

her pain. As she was sitting in a chair being shown how to

stretch, A.H. felt RespondentÓs erect penis pushing against her

back. S he quickly told Respondent ÐIÓve got itÑ in order to stop

his actions. She got up quickly and moved to another chair in

the office. A.H. clearly described what she had felt and had no

confusion or doubt about what happened. Her testimony about the

incid ent was credible.

40 . Respondent then told A.H. to lie on the table on her

side with her arms stretched out in front of her. Despite what

had just happened, A.H. complied with his directions. 5/ When she

got into position, Respondent had A.H. move her b ody over to the

very edge of the table and began to manipulate her back. As his

hands continued down her back, she felt his hands go down inside

her panties. As this happened, she could feel Respondent

ÐhumpingÑ her, grinding his groin area against her b ackside.

Respondent then told A.H. to change positions on the table,

moving her feet to the opposite end. Amazingly, she again

complied with his instructions. Respondent began touching her

upper thigh near her vagina and Ðdid the same thing he had done

before.Ñ At that, A.H. quickly moved off the table and onto a

chair, where she sat rigid and refused to move. Respondent

seemed calm and relaxed, showing no sign of having acted

inappropriately.

4 1 . A.H. did not tell anyone at Advantacare about the

inc ident on that day because she could not fully grasp what had

happened. As she began to understand the situation better, she

was worried about reporting the incident because it would be her

word against the doctorÓs. A.H. did tell another doctor

(Dr. Jaco bson) about the incident when she saw him the next day

for a regularly scheduled appointment. Dr. Jacobson had been an

employee with Advantacare and presumably relayed A.H.Ós

allegations to the center. A.H. also reported the incident to

the Board of Heal th and to law enforcement. She later contacted

an attorney about filing a civil lawsuit against Respondent.

4 2 . A.H. did not return to Advantacare for treatment after

this event because of the traumatic impact of the incident.

Respondent has no indepe ndent recollection of A.H. as a patient,

but said he did not touch her inappropriately.

4 3 . A.H.Ós testimony was believable. She was a credible

witness and articulated her testimony clearly. It is strange

that A.H. would continue to obey Respondent eve n after he had

touched her inappropriately, but she was obviously a compliant

person, especially as it relates to physicians.

RespondentÓs defenses to allegations by patients

4 4 . Respondent claims he never saw a written chaperone

policy at the Back Ce nter but that he knew that it existed.

According to him, there was insufficient staff available to make

it possible to comply with the policy. RespondentÓs testimony in

this regard is rejected as being contrary to better, more

persuasive evidence.

4 5 . Respondent said he was on several medications for Ðfive

or six yearsÑ prior to the final hearing, including Zoloft for

mild depression, Lisinopril for hypertension, and Toprol for

hypertension. One of the possible side effects of those

medications is impo tence or erectile dysfunction. However,

during the time he was taking these drugs, Respondent fathered

his two children. There is no competent evidence that Respondent

suffered from impotence or erectile dysfunction during the time

of any of the allegati ons about sexual misconduct.

4 6 . Respondent usually wore a lab coat when treating

patients. The coat is long and had large pockets in the front,

at about groin level. Respondent would keep empty syringes in

his coat pocket. He suggests that female pati ents who said they

felt his erect penis were actually feeling the syringes. His

suggestion is not very plausible or persuasive.

4 7 . Respondent demonstrated at final hearing the normal

physical stance he took when doing an injection of a patient in

an exa mination room setting. He suggested that his body would be

turned at a 45 - degree angle from the patient rather than facing

them directly, thus eliminating the possibility of full frontal

contact with the patient. He also said that he generally stood

four or five inches away from the patient, but might come into

contact with the patient occasionally. Neither the statements

nor his demonstration were persuasive.

4 8 . RespondentÓs contention is that each and every one of

the patients who alleged sexual misc onduct was lying. He

suggests that patient D.K. was overweight and thus would not have

sexually aroused him. Also, he maintains that her description of

the injections being performed while Respondent was rubbing

against her would have necessarily resulte d in horrible pain at

best or a broken needle at worst. He claims that since patient

M.B. was married to a policeman, she would have necessarily taken

photographs of her numerous injections to preserve a record and

she would have complained immediately. Her failure to do so, he

suggests, impugns her testimony. Respondent contends that

patient T.J.Ós tardiness in reporting her allegations suggests

the allegations were false. Respondent refutes A.H.Ós

allegations on the basis that there was a disagreement as to the

physical layout of the medical office. Respondent contends there

is no evidence that patient S.D. (his alleged lover) was his

patient, even though there is a stipulation to that effect.

Despite these speculative defenses, the evidence presente d by the

alleged victims is credible and accepted as fact.

Failure to update practitioner profile

4 9 . A letter dated March 27, 2013, advising Respondent of

his termination from participation in the Medicaid Program, was

mailed to Respondent at two separat e addresses: 2222 South

Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e.,

the address of the Back Center, and 930 South Harbor City

Boulevard, Melbourne, Florida 32901, the address for Osler (the

company with whom the Back Center merged at some point in time).

The letter to 2222 South Harbor City Boulevard was received on

April 1, 2013, and an acknowledgement was signed by

Chandra Carrender, a Back Center employee. RespondentÓs

employment with the Back Center had been terminated some 16

m onths previously, i.e., in August 2011. The letter mailed to

930 Harbor City Boulevard was returned as undeliverable. The

termination letter provided Respondent notice of his right to

contest the decision. He was given 21 days from receipt of the

letter to file a Petition if he wanted to challenge the

termination.

50 . Respondent did not file a challenge, so o n or about

June 21, 2013, a Termination Final Order was filed by the Agency

for Health Care Administration (AHCA), setting forth RespondentÓs

ter mination from participation in the Florida Medicaid Program.

The termination was issued pursuant to section 409.913, Florida

Statutes. By law, Respondent was required to update his Florida

practitioner profile within 15 days of receipt of the Termination

Final Order.

5 1 . The Termination Final Order was mailed to Respondent,

return receipt requested, at two different addresses: The 930

South Harbor City Boulevard address and the 2222 South Harbor

City Boulevard address. Respondent denies having receiv ed the

letter or TFO until just prior to the formal administrative

hearing in this matter.

5 2 . Licensed physicians in the State of Florida are

required to maintain a current address of record with the Agency

for Health Care Administration (AHCA) and the Department of

Health. Neither Respondent nor the Department provided evidence

as to what RespondentÓs official address of record was at the

time the TFO and the letter were sent to Respondent at the two

Harbor City Boulevard addresses. According to the d eposition

testimony of Michael West of the AHCA Medicaid Program Integrity

office, the notices were sent to RespondentÓs Ðaddress of recordÑ

per section 409.913(6), Florida Statutes. WestÓs testimony,

however, did not specify what address that was. It mi ght be

logically presumed that one or both of the Harbor City Boulevard

addresses were the Ðaddress of record,Ñ because that is where the

notices were mailed. However, there is no clear and convincing

evidence as to RespondentÓs official address of record at the

time the Termination Final Order was mailed.

5 3 . The statutory section referred to by West states:

Any notice required to be given to a provider

under this section is presumed to be

sufficient notice if sent to the address last

shown on the pro vider enrollment file. It is

the responsibility of the provider to furnish

and keep the agency informed of the

providerÓs current address. United States

Postal Service proof of mailing or certified

or registered mailing of such notice to the

provider at the address shown on the provider

enrollment file constitutes sufficient proof

of notice. Any notice required to be given

to the agency by this section must be sent to

the agency at an address designated by rule.

5 4 . Respondent did not update his Florid a practitioner

profile because he claims never to have received a copy of the

TFO or the letter. Neither Respondent nor the Department

provided direct evidence of RespondentÓs Ðaddress last shown on

the provider enrollment fileÑ as of March 27, 2013. 6/

Ot her factual considerations

5 5 . Respondent was terminated from employment at the Back

Center in September 2011. The termination occurred as follows:

T.J. reported the alleged October 29, 2010 incident in

April 2011. Dr. Hynes was already aware of anoth er incident

(from D.K. in January 2011). Dr. Hynes met with Respondent to

discuss his alleged behavior. Respondent denied the allegations,

saying that people just seem to like him and take advantage of

him. He said the patients were lying about the inci dents.

Dr. Hynes mandated at that time that Respondent have a chaperone

in the examining room with every female patient. Rather than

being allowed to exercise Ð medical judgment Ñ like other doctors

in the clinic, Respondent was ordered to always use a cha perone

with all female patients. After patient C.J.Ós allegations came

to light in May 2011, Dr. Hynes told Respondent that three times

was enough; something had to be done. The Back Center commenced

preparation of a termination letter. The letter was t o tell

Respondent that , pursuant to his Employment Agreement, the Back

Center was providing him the 180 - day notice of termination of

employment Ðwithout cause.Ñ The purpose of that letter was to

allow Respondent time to find a job and not have a blemish o n his

record. One of the bases for the termination letter was that

Respondent had been referred to the Physicians Recovery Network

(PRN) for counseling to address his behavior. Dr. Hynes presumed

Respondent was obtaining that counseling. However, when C .J.

reported the incident on May 4, 2011, Dr. Hynes found out that

Respondent had not been going to PRN as he had previously

indicated. At about the time the 180 - day letter was being

drafted, another incident (by patient M.B.) was reported to the

Back Cen ter. Upon hearing of that allegation, Dr. Hynes verbally

fired Respondent, effective immediately , with cause . The 180 - day

letter was not actually delivered to Respondent until after the

verbal termination, so the letter was moot when it arrived.

Respond ent did not tell his next employer, Advantacare, that he

had been terminated from employment by the Back Center. He also

did not advise Advantacare about the sexual allegations made by

patients at the Back Center.

5 6 . In summary, Respondent engaged in ac tivities of a

sexual nature with patients at the Back Center in December 2010,

January 2011, May 2011, and August 2011 (in addition to his

relations with S.D. in 2008 Î 2010). He engaged in sexually

related touching of a patient at Advantacare in January 20 13.

His employment with the Back Center was terminated in

September 2011; his employment with Advantacare was terminated in

April 2013.

5 7 . Former patients of Respondent expressed dismay that he

was being charged with the violations set forth in the

Admi nistrative Complaint. They found Respondent to be a caring

and professional doctor. It is clear Respondent did not treat

all his patients the same way he treated the victims identified

herein. Some of his co - workers said they did not see Respondent

enga ge in any of the alleged actions. They did not receive any

complaints from other patients. Respondent obviously has a

stellar reputation with some of his patients and co - workers.

That status, however, does not excuse his behavior with the

victims in the present cases. It is also alleged that Bobbi

McDonald was a rumor - mongerer and a liar. She appeared credible

at final hearing and there is no competent, substantial evidence

to support the dispersions cast by others.

5 8 . It should be noted that sever al witnesses identified by

Respondent were displeased with the manner in which they were

questioned by Department personnel prior to the final hearing.

The witnesses expressed extreme discomfort when Department

employees (attorneys) suggested that Respond ent was Ðan addictÑ

or a sociopath. While a state agency is bound to pursue all

claims against individuals which it is responsible for licensing

and monitoring, it is improper to harangue or disparage such

persons in order to sway potential witnessesÓ tes timony. Upon

full review of the evidence in this case, the potential witnesses

who complained about the DepartmentÓs aggressive nature did not

provide substantive testimony on the issues of this case. Thus,

any harm which may have resulted from the Depar tmentÓs statements

would not affect the final decision herein.

CONCLUSIONS OF LAW

5 9 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to s ections 120.57 and

120.569, Florida Statutes (2014). Unless otherwise stated he rein

to address existing statutes as of the date of specific

allegations, all references to Florida Statutes shall be to the

2014 codification.

60 . This is a proceeding in which the Department seeks to

revoke RespondentÓs license to practice medicine. Be cause such

disciplinary actions are considered penal in nature, the

Department must prove by clear and convincing evidence that

RespondentÓs license to practice medicine should be revoked based

on the facts presented. Dep't of Banking and Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

6 1 . The Department must prove that Respondent engaged in

the activities and behavior alleged in the administrative

complaints. See Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence i s an intermediate standard

of proof which is more than the "preponderance of the evidence"

standard used in most civil cases but less than the "beyond a

reasonable doubt" standard used in criminal cases. See State v.

Graham , 240 So. 2d 486 (Fla. 2nd DCA 1 970). Clear and convincing

evidence has been defined as evidence which:

Requires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the wi tnesses must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

establishe d.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)

(citations omitted). See also In re Henson , 913 So. 2d 579, 590

(Fla. 2005).

6 2 . ÐAlthough this standard of proof may be met where the

evidence is in conflict, it seems to preclude evid ence that is

ambiguous.Ñ Westinghouse Elec. Corp. v . Shuler Bros. , 590 So. 2d

986, 989 (Fla. 1991).

6 3 . The findings of fact set forth above were made as a

result of clear and convincing testimony and documentary evidence

presented at the final hearing. The evidence regarding

RespondentÓs sexual behavior with his patients met the level of

proof required of the Department for Case No. 14 - 1342PL, Counts I

& II; and Case No. 14 - 1343PL, Counts I & II. The evidence

concerning RespondentÓs termination from th e Medicaid Program was

sufficient proof for Case No. 13 - 2488, Count I (only). The

evidence regarding RespondentÓs alleged failure to update his

professional profile did not meet the clear and convincing

standard.

6 4 . The Department has the right to impo se discipline on

physicians licensed by the State of Florida. Grounds for

discipline are found in c hapter 458 and Florida Administrative

Code Rule 64B8 - 9.008. In the 2008 - 2012 versions of Florida

Statutes, the following grounds for disciplinary actions a re

listed in section 458.331(1):

(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 acti vity with his or her physician.

* * *

(nn) Violating any provision of this chapter

or chapter 456, or any rules adopted pursuant

thereto.

Further, s ection 458.329 (2008 - 2012), states:

The physician - patient relationship is founded

on mutual trust. Se xual 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 sex ual 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.

Rule 64B8 - 9.008 states in pertinent part:

1. Sexual conduct with a pa tient is sexual

misconduct and is a violation of Sections

458.329 and 458.33(1 ) (j), F.S.

2. For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but is not limited to:

(a) S exual 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 a s 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.

6 5 . The statutory language of section 458.331 (1) (j) and

(nn), and of s ection 458.3 29 has not changed from the 2008

version to the present. Likewise, the rule 64B8 - 9.008 has been

in effect since 1994 and has not been amended since 1997 except

for a change in the rule number.

6 6 . Disciplinary provisions such as section 458.331 must be

s trictly construed in favor of the licensee. Elamariah v. DepÓt

of ProfÓl Reg. , 574 So. 2d 164 (Fla. 1 st DCA 1990); Taylor v.

DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784 (Fla. 1 st DCA 1988).

Disciplinary statutes must be construed in terms of their literal

m eaning, and words used by the Legislature may not be expanded to

broaden their application. Latham v. Fla. CommÓn on Ethics , 694

So. 2d 83 (Fla. 1 st DCA 1997); see also Beckett v. DepÓt of Fin.

Svcs. , 982 So. 2d 94, 100 (Fla. 1 st DCA 2008); Dyer v. DepÓt of

Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1 st DCA 1991).

6 7 . Based upon the evidence, including the live testimony

of four of the six alleged victims, RespondentÓs supervisor, a

fellow physician, and employees of the Back Center and

Advantacare, there is clear and convincing evidence that

Respondent engaged in behavior which violated the above - cited

statutes and rule. The deposition testimony of the fifth alleged

victim is also accepted as credible (as set forth above) due to

its consistency with the testimony of other witnesses. The

testimony (via deposition transcript) of C.J. was clear, precise,

and explicit. The Department has met its burden.

6 8 . RespondentÓs defenses concerning the allegations are

not persuasive. It is clear Respondent di d not suffer from

erectile dysfunction or impotence during the period of time at

issue in this proceeding. His suggestion that the patients felt

the syringe in his lab coat and mistook it for his erect penis is

rejected as not believable. RespondentÓs ap parent disregard for

the chaperone policy, along with his denial of its existence, is

a concern in light of the strong evidence to the contrary. The

explanation given by Respondent as to what his emails with S.D.

were meant to imply was, frankly, insultin g to a person of

average intelligence. The emails themselves are clear and

convincing evidence that a romantic relationship existed between

Respondent and his patient/co - worker. Respondent appears to be a

capable physician and a well - liked person by some of his patients

and co - workers, but his demeanor at final hearing and the

unbelievable statements he made reduced the credibility of his

testimony. In short, the allegations were clearly established by

the evidence.

6 9 . The fact that some co - workers nev er heard any

complaints about Respondent, and that some patients were not

victimized by Respondent, does not address or mitigate the

violations relating to the victims. The testimony of those

persons, while supportive of Respondent, is acknowledged but do es

not rebut or refute the charges against him.

70 . The Department did not meet its burden of proof as to

whether Respondent appropriately and timely updated his

professional profile information. Absent clear and convincing

evidence as to RespondentÓs ad dress of record at the time the

notices were sent to him, it is impossible to determine that he

actually or effectively received the notices.

7 1 . There was, however, clear and convincing evidence as to

the sexual allegations sufficient to warrant the revo cation of

RespondentÓs license to practice medicine in the State of

Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Health revoking Respondent, A lbert Esmailzadeh, M.D.Ós license

to practice medicine in the State of Florida.

It is further RECOMMENDED that the final order assess the

cost of investigating and prosecuting this case, and that payment

of such costs be assessed against Respondent, Alb ert Esmailzadeh,

M.D.

DONE AND ENTERED this 19th day of November , 2014 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of November , 2014.

ENDNOTE S

1 / All patients of Respondent will b e identified only by way of

initials in this Recommended Order in an effort to help protect

their confidentiality and privacy.

2/ See Prehearing Stipulation, Paragraph (e)18. Nonetheless,

Respondent argues in its PRO that the Department failed to prove

the physician - patient relationship.

3 / There was no testimony provided by either party as to the

degree of pain a patient must be experiencing in order to warrant

an injection.

4 / RespondentÓs contention that he could not slide the table away

from the wall with a 165 - pound person sitting on it is not

persuasive. Several of the victims said Respondent moved the

table. No one testified that Respondent lifted the table, only

that he moved it, presumably by sliding it along the floor.

5/ While it see ms somewhat peculiar that A.H. would agree to lie

on the table after what had just happened, she exhibited a strong

aversion to questioning authority figures. Based upon her

demeanor, her testimony is accepted as given, without hesitancy.

6/ It is presu med the Department could have obtained a copy of

the provider enrollment file as of March 27, 2013, but no such

evidence was produced.

COPIES FURNISHED:

Gregory W. Eisenmenger, Esquire

Eisenmenger, Berry and Peters, P.A.

5450 Village Drive

Viera, Flor ida 32955

(eServed)

Alicia Elaine Adams, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Allison M. Dudley, Executor Director

Board of Medicine

Department of Health

4052 B ald Cypress Way, Bin C03

Tallahassee, Florida 32399

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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 Order in this case.