16-001595PL Department Of Health, Board Of Medicine vs. Robert B. Dehgan, M.D. Status: Closed Recommended Order on Wednesday, August 31, 2016.

Summary: Respondent committed sexual misconduct with respect to three pain management patients. Recommended 3-year suspension and additional penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 16 - 1595PL

ROBERT B. DEHGAN, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 20 an d 21, 2016, Administrative Law Judge Lisa

Shearer Nelson conducted a disputed - fact hearing pursuant to

section 120.57(1), Florida Statutes (2015), in St. Augustine,

Florida .

APPEARANCES

For Petitioner: Chad Wayne Dunn, Esquire

Corynn C. Gasbarro, Es quire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Thomas R. Brown, Esquire

The Brown Law Firm

6277 Dupont Station Court East , Suite 3

Jacksonville, Florida 32217

STATEMENT OF THE ISSUE S

The issues to be resolved are whether Respondent, Robert B.

Dehgan, M.D. (Dr. Dehgan or Respondent), committed sexual

misconduct in violation of sections 456.072(1)(v) and

458.331(1)(j), Florida Statu tes (2014), with respect to patients

A.S., S.M., and C.T. ; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 24, 2016, Petitioner, Department of Health (the

Department or Petitioner), filed a six - count Amended

A dministrative Comp laint against Respondent, alleging that he

committed sexual misconduct in the course of his treatment of

patients A.S., S.M., and C.T. On March 10, 2016, Respondent

filed an Answer to Amended Administrative Complaint and Demand

for Formal Hearing. On Mar ch 18, 2016, the Department referred

the case to the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge.

After receipt of the partiesÓ Joint Response to Initial

Order, on April 5, 2016, a Notice of Hearing was issued

s cheduling the case to be heard on June 20 through 24, 2016.

Petitioner and Respondent filed Unilateral Pre - hearing Statements

on June 13 and June 14, 2016, respectively. Respondent also

filed a Motion to Declare Florida Statutes Sections

456.072(1)(v), 4 56.331(1)( j ), and 458.329 to be Unconstitutional,

as well as a Notice of Hearing on the m otion. On June 15, 2016,

an Order was issued stating that, inasmuch as administrative law

judges do not have the authority to address the constitutionality

of a statu t e, there would be no ruling on RespondentÓs motion,

but that he would be afforded an opportunity to argue the motion

at the beginning of the hearing in order to preserve the issue

for appeal.

Although the parties had requested five days for the

hearing, o nly two days were necessary for the presentation of

evidence, and the hearing began June 20 and concluded June 21,

2016. Joint Exhibits 1 through 4 were admitted into evidence.

Petitioner presented the testimony of patients A.S., S.M., and

C.T.; Andrea P ratt ; and Bruce Goldberger, M.D. PetitionerÓs

Exhibits 1 through 3, which include the depositions of Jonathan

Waldbaum, M.D. , and of Respondent, also were admitted into

evidence. Respondent testified on his own behalf and presented

the testimony of Thoma s Pulzone; Edward Risch, M.D. ; and Diana

Cordero, M.D., and RespondentÓs Exhibit 1 was admitted into

evidence. Petitioner was given an opportunity to late - file a

copy of RespondentÓs prior discipline, which was officially

recognized.

The three - volume Tran script of the proceedings was filed

with DOAH on July 6, 2016. At the request of the parties

additional time was allotted for filing proposed recommended

orders, and Respondent and Petitioner filed their Proposed

Recommended Orders on July 20 and 21, 2016 , respectively.

Unless otherwise specified, all statutory references are to

the version of the statute in effect at the time of the alleged

conduct.

FINDING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

upon the entire record of this proceeding, the following factual

findings are made:

1. Petitioner is the state agency charged with regulating

the practice of medicine pursuant to section 20.43 and chapters

456 and 458 , Florida Statutes.

2. At all times material to these proceedings, Respondent

was a licensed medical doctor within the State of Florida, having

been issued license number ME16903. RespondentÓs address of

record is 220 Paseo Terraza, No. 307, St. Augustin e, Florida

32095.

3. Respondent originally practiced as an orthopedic

surgeon. However, Respondent experienced some professional

difficulties in the mid - 80s that resulted in his seeking and

completing retraining in the area of physical medicine and

rehab ilitation. 1/ He is board certified in physical medicine and

rehabilitation.

4. At the time of the allegations giving rise to this case,

Respondent was practicing pain management with a practice

entitled Ð Jacksonville Multispecialty Group, LLC Ñ (JMG), and held

the necessary certification from the United States Drug

Enforcement Agency to prescribe Suboxone and Subutex.

5. Suboxone is a brand name for buprenorphine, a synthetic

opioid, which is a controlled substance and is generally used to

treat opioid ad diction. Subutex is also a brand name for

buprenorphine. Unlike Suboxone, Subutex does not contain

naloxone, an additive used in Suboxone to prevent overdosing.

Subutex is prescribed for pregnant patients and those patients

who cannot tolerate Suboxone.

6. The office policy for pain management patients at JMG ,

consistent with most similar health care providers, was to obtain

a urine sample for a 12 - panel test at each visit. The purpose of

the drug testing was to insure that pain management patients w ere

abiding by the contract that they sign, and taking only the

medicine prescribed to them. If a patient is compliant, the test

results should show the existence of the drugs prescribed in his

or her system, and none others. If a patient is not complian t,

it is a basis for dismissing the patient from the physicianÓs

practice.

7. The urine sample given at each visit is used for a test

performed in the office, and tests for 12 drug classes. The

results from the 12 - panel test are presumptive only. If any

results are positive that should not be , the sample is sent to a

laboratory that does complex testing for confirmation. The

confirming laboratory then performs a liquid chromatography mass

spectrometry (LCMS). The LCMS is a very specific test that

provi des confirmation for drug use and drug classes, and rules

out the possibility of false positives that may occur with a

point - of - care test.

8. According to Dr. Bruce Goldberger, M.D., a professor and

the director of toxicology at the University of Florida College

of Medicine, LCMS is the more accurate test and is considered the

gold standard in drug testing. Dr. GoldbergerÓs testimony is

credited.

Patient S.M.

9 . Patient S.M. received medical care from Respondent from

March 12, 2014, through August 27, 2 014. S.M. saw Dr. Dehgan or

an Advanced Registered Nurse Practitioner ( ARNP ) under his

supervision approximately every four weeks during this time

period.

10 . At the time of her initial presentation to JMG, S.M.

was 44 yea rs old. S.M. had been prescri bed opiates in response

to a badly sprained ankle and some dental surgery, and as a

consequence , became addicted to them. She testified candidly and

credibly at hearing that as a result of her addiction, she sought

both prescription and illegal street dru gs, including heroin,

methadone, oxycodone, and hydrocodone. S.M. was frightened by

her behavior, and sought treatment in order to get clean and to

be a better role model for her daughter.

11 . Respondent treated S.M. with Subutex , 2/ and she

responded wel l to the treatment and has managed to refrain from

using opiates and other illegal drugs. She had no complaints

regarding RespondentÓs treatment plan for her and felt she

benefited significantly from his treatment plan.

12 . When a patient would come to t he office at JMG for a

follow - up visit while on Suboxone or Subutex treatment, the

patient would fill out a therapy progress report. The therapy

progress report asked the patient a series of questions, such as

Ðplease describe any life changes, triggers, or stressors that

have occurred since your last visit,Ñ Ðlist your ideas and plan

to cope with these life changes, triggers, or stressors,Ñ and

Ðwhat is your next short - term goal?Ñ S.M. routinely completed

these therapy progress reports and recorded in th e early reports

how much better she was feeling, and that she was not

experiencing any cravings. Dr. Dehgan ordinarily reviewed the

therapy progress report at the time of a patientÓs visit if it

was available.

1 3 . S.M. saw Dr. Dehgan approximately every four weeks.

The first three visits were routine and uneventful. However, at

her visit on May 30, 2 01 4, S.M. remarked on her therapy progress

report that she was anxious because her daughter was getting

ready to leave for Canada for the summer, and she ha d been

fighting with her ex - husband regarding finances. She talked to

Dr. Dehgan about her anxiety, and mentioned that she had taken a

second job working on the weekends at the beaches in

St. Augustine and the Palm Coast area .

1 4 . Dr. Dehgan told her t hat he lived on the beach and

asked if he could give her his cell phone number, and maybe he

could take her to lunch.

1 5 . S.M. said okay, because she did not know what else to

do. He handed her a slip of paper with the phone number on it,

and she put i t in her purse. When she stood up to leave,

Respondent hugged her and attempted to kiss her, ultimately

kissing the side of her face near her ear because she turned her

head away from him.

1 6 . The door of the examination room was closed, and there

was n o attendant or ancillary personnel in the room at the time

Dr. Dehgan hugged and attempted to kiss S.M.

1 7 . S.M. was shocked by Dr. DehganÓs actions, as nothing

like this had ever happened to her before. She left the office

without saying anything to any one about it, and confided only to

the one person outside of JMG who knew that she was taking

Subutex.

1 8 . Despite the incident de scribed above, S.M. returned to

JMG for her next scheduled appointment with Dr. Dehgan, because

she could not find another pr ovider who could prescribe Subutex

and who would take her health insurance. Most providers that she

could find would only take cash, and she could not afford to pay

for treatment without using her insurance.

1 9 . S.M.Ós next scheduled appointment was June 27, 2014.

Initially, Respondent did not mention or acknowledge his actions

at the May 30 appointment, and S.M. was relieved. At the end of

the appointment , however, Respondent remarked, Ðhey, I gave you

my phone number. You didnÓt call me.Ñ S.M. made up an excuse

that she ha d lost the phone number. As he left, Respondent

hugged her again.

20 . S.M. interpreted RespondentÓs actions as romantic in

nature. As she stated, she did not know if Respondent wanted to

have sex with her, Ðbut I know when someon e is asking me on a

date.Ñ

21 . S.M. also saw Respondent on August 1, 2014, and

August 27, 2014. On August 27, 2014, there was a female staff

member in the room for her appointment. Respondent had been

presented with and signed an acknowledgment form o n August 22,

2014, just five days before, which stated:

I understand the office policy that a female

member of our staff must be present during my

female patientÓs office visits. I understand

that I will not conduct the office visit

without ensuring that a member of our staff

is present.

22 . Andrea Pratt, vice president of operations for JMG,

testified that the acknowledgement form was put in place to

protect both the doctor and the patient, and was put in place

after receiving a complaint from another pa tient. Only

Dr. Dehgan was required to sign a n acknowledgement form.

Dr. DehganÓs testimony in his deposition that he requested the

change in policy because he was being propositioned by female

patients is rejected as not being credible, and Ms. PrattÓs

testimony regarding the reason for the policy is accepted.

2 3 . On September 15, 2014, Respondent was terminated from

his employment with JMG. While Respondent contends that it was

for having ten unsigned patient charts, the termination letter

indicates that he was terminated without cause. As a result of

his dismissal from JMG, at her next scheduled appointment, S.M.

saw Dr. Hernan Chang, M.D. When she checked in for the

appointment, she asked if Dr. Dehgan was no longer there because

he kisses his pat ients.

2 4 . S.M. continued to be treated at JMG and seen by

Dr. Chang, until she received a letter from the practice in 2015

indicating that Dr. Chang would no longer be seeing patients at

that location.

2 5 . Respondent testified that he has no recollect ion of

S.M. He a ttempted to impeach S.M.Ós credibility on the basis of

a positive urine drug screen result received from a point - of - care

test at JMG.

2 6 . S.M.Ós 12 - panel test for her appointment on

September 25, 2014, was negative for opiates. Howeve r, the

confirmatory LCMS was positive for morphine, with a value of 85,

compared to a reference range of less than 50 nanograms per

millil i ter. S.M. denied taking morphine or any other opiates

after starting Subutex.

2 7 . S.M.Ós drug results were reviewe d by Dr. Goldberger,

who testified that a concentration of 85 nanograms per milliliter

of morphine can be attributed to ingestion of morphine, ingestion

of codeine, or ingestion of poppy seeds. These possible

attributions also are listed on the report its elf. He opined

that it would be difficult to attribute the exact source of

morphine resulting in this test result for S.M. His testimony is

persuasive, and is credited.

2 8 . S.M. did not know any other patients who treated with

Dr. Dehgan, and does not know any of the patients who were

witnesses in this case. Her testimony was consistent and

persuasive: she was candid about the scope of her drug

dependence, including her resort to illegal drugs . Her

explanation as to why she continued to see Dr. Dehga n after the

May 30 incident is believable, considering her desire to remain

off illicit drugs and opiates , and the continued references to

financial difficulties in her therapy reports. Indeed, the note

for her second visit indicates that a stressor for h er was the

difficulty getting her medications approved by her insurer. It

is understandable that she would be reluctant to change

physicians if she could not find one that would take her

insurance.

29. Moreover, even assuming that S.M. was noncompliant

leading up to her visit on September 25, 2014 , and the evidence

does not support such a finding, any noncompliance would not

necessarily lead to a conclusion that she was not telling the

truth regarding her encounters with Respondent.

Patient A.S.

30 . Pa tient A.S. initially presented to Dr. Dehgan for

treatment of opiate dependence when Dr. Dehgan worked at

Orthopedic Associates, prior to his employment at JMG.

31 . When she first presented for treatment at JMG, A.S. was

50 years old. She had a lengthy history of multiple abdominal

surgeries dating back to her mid - twenties , including bowel

resections, multiple hernia repairs, a tubal ligation,

hysterectomy, endometriosis treatment, tubal pregnancy, and

appendectomy. As a result of her lengthy use of leg itimately -

prescribed opioid medications, A.S. became dependent on them.

32 . A.S. began treating with Dr. Dehgan at JMG beginning

June 10, 2013, and continued treatment at JMG until September 16,

2014 , receiving Suboxone for her opioid addiction . Like S. M.,

A.S. was satisfied with RespondentÓs treatment plan. She had no

complaints about Dr. Dehgan until the summer of 2014. During

that summer, there were three separate incidents where A.S.

contends that Respondent touched her inappropriately. While A.S.

did not recall the exact dates of these incidents, she was

consistent in her testimony of what happened and in her belief

that these incidents occurred on three different, consecutive

appointments with Dr. Dehgan leading up to the RespondentÓs

termination from JMG. 3/

33. At A.S.Ós first appointment at JMG, she filled out a

patient questionnaire that asked a variety of questions related

to past medical history, current complaint, and medications

taken. The questionnaire included a diagram, showing the fr ont

and back of a personÓs body, on which a patient was directed to

identify areas and types of pain. A.S. identified pain both in

the abdominal area, and the corresponding area on her lower back.

She described the pain for both areas as being sharp and aching.

She did not indicate that she had any pain radiating down either

leg. Respondent made no assessment regarding back pain in his

notes, but prescribed Suboxone for her chronic pain and

recommended follow - up in two months.

34. At all subsequent vi sits but one, A.S. continued to

complete some sort of questionnaire or a therapy progress report.

For the visits on August 13, 2013, and September 13, 2013, there

is no mention of back pain by either Respondent or A.S.

35. There does not appear to be a questionnaire for the

appointment on November 22, 2013, but RespondentÓs notes for this

visit mention low back pain for the first time. 4 / RespondentÓs

records for the November 22 appointment identif y constant low

back pain under the ÐH istory of P resent I l lness Ñ category. The

note states in part:

50 - year - old female is seen in the office

today for followup evaluation and management

of chronic opioid dependency. She takes

Suboxone 8 mg twice daily. She is not taking

any other medications and maintaining we ll on

Suboxone twice daily There [ sic ] has been no

interval change in the location, quality,

increasing/decreasing factors, associated

signs and symptoms as previously described.

Lumbar Spine/Lower Back:

Low back pain bilaterally, lumbar, that is

constan t , Nature: aching, Aggravated by:

any physical activity, Aggravated by:

bending, Severity: moderate to severe.

Previous trials offered little or short

durations of relief. Some relief from

medications. Low back pain midline,

paraspinal, Nature: achi ng, Nature:

shooting, lumbar, that is constant ,

aggravated with movement, walking, lifting

the legs.

Radiates down the leg with associated

numbness that is has [ sic ] severity:

moderate to severe.

36. Despite this lengthy note describing what appears to be

a new complaint, RespondentÓs notes for the back under the

ÐG eneral E xamination Ñ section of the patient record is exactly the

same as it was for the previous visit and contains no positive

findings :

BACK: Cervical, thoracic and lumbar spines,

full ra nge of motion, no kyphosis, no

scoliosis, spine nontender to palpation, No

muscle spasms noted, no paraspinal muscle

tenderness nor trigger points identified.

Respondent did not sign this patient record: it reflect s an

electronic signature of January 6, 2015, well after his

departure, and the sign - off status is listed as Ðpending.Ñ

37. A.S.Ós next appointment at JMG was December 20, 2013.

Her questionnaire for the visit indicated that she was depressed,

had a stomach ache, and that it was not a good ti me of year for

her. She was simply seeking to get through things and hope the

next year was better. There is no mention of back pain.

RespondentÓs notes, however, under ÐHistory of Present IllnessÑ

are identical to the November 22 visit with respect to back pain.

The physical examination is also identical, with no real findings

related to her back. This patient note also is listed as

Ðpending,Ñ and is electronically signed in January 2015, after

RespondentÓs departure.

38. Similarly, A.S.Ós notes on her questionnaire for her

January 17, 2014, visit mention depression, loneliness , and an

asthma flare - up, but make no mention of back pain. RespondentÓs

notes, which are electronically signed well after his

termination, reference low back pain , but make t he same negative

findings with respect to his examination. A.S.Ós notes for the

visit on February 19, 2014 , mention problems with her car as a

stressor, but again mention nothing about back pain or abdominal

pain. RespondentÓs notes reference ongoing abd ominal pain , but

make no mention of back pain in the Ð History of Present Illness. Ñ

References to the back under Ð General Examination Ñ are the same

negative findings listed for prior visits, yet l umbago and

s ciatica are listed as diagnoses under Ð Assessmen ts. Ñ The same

can be said for RespondentÓs notes for the visit on March 21,

2014, for which A.S.Ós questionnaire makes no mention of back

pain.

39. It was during this visit that the first incident of

what A.S. alleged was inappropriate behavior by Respo ndent most

likely occurred. A.S. had been telling Dr. Dehgan about how she

was feeling, and A.S. testified that as she was getting read y to

leave the examining room, Respondent said, ÐI think you need a

hug,Ñ and reached over and hugged her. The embrace lasted about

30 seconds and made her feel strange. A.S. testified that the

hug was initiated by Dr. Dehgan at a time when the door to the

examining room was closed and there was no one else in the room.

She was astonished because no doctor had ever done that to her

before. She continued to see him, however, because she thought

this first incident was a ÐflukeÑ and finding a pain management

physician was difficult.

40 . At A.S.Ós visit on April 18, 2014, she wrote that she

was very depressed and was expe riencing chronic pain with respect

to her abdomen and lower back, and that her allergies had been

terrible. RespondentÓs notes, which he signed on April 28, 2014,

indicate that she comp lain ed of persistent abdominal pain,

hernia, and low back pain radiati ng to her buttocks. Under his

ÐG eneral E xamination Ñ f or this visit, Respondent noted that her

abdomen was soft and tender to the touch; that there was

Ðpresence of hernia and right lower side.Ñ With respect to her

back, he notes for the first time that t here is tenderness on the

lumbar paraspinals, sacrum , and buttocks; that there is forward

flexion, associated with moderate pain; that A.S. Ðstands and

toes and heels with some discomfortÑ; and that her Ð[ s ] traight

leg rising is mildly positive. Ñ Responde nt lists lumbago and

sciatica among her diagnoses, with lumbago as the primary

diagnos i s.

41. A.S. testified that she talked to Respondent about her

fear that she had another hernia that might need repair, and he

offered to check it for her. She consent ed to his doing so. He

did not ask her to take her clothes off, and the examining room

door was closed, with no one else in the room. During his

purported examination related to her hernia, Respondent did not

examine the four quadrants of her abdomen. H e simply touched her

abdomen and reached up and squeezed A.S.Ós right breast with one

hand.

42. A.S. has suffered from hernias and has been examined in

connection with hernia repairs since her early thirties. She had

seen two prior physicians for th is c ondition before seeing

Respondent. No other doctor had ever touched her breast in the

examination of her hernia.

43. Dr. Jonathan Waldbaum, M.D., testified as an expert on

behalf of the Department. Dr. Waldbaum testified that a breast

examination shoul d never be part of an abdominal examination, and

while it was possible for there to be incidental touching of a

patientÓs breast, depending on the location of the hernia and the

physique of the patient, any such contact would be limited to the

back of the physicianÓs hand coming into contact with the breast.

Even Respondent testified that there would be no reason for him

to touch A.S.Ós breast.

44. A.S. testified that she backed away from Respondent ,

but did not say anything to him.

4 5 . A.S.Ós next a ppointment at JMG was June 19, 2014, at

which time she saw an ARNP, Ashley Schinner. While her

questionnaire does not mention back pain, the patient record

notes back pain and abdominal pain related to her hernia in the

Ð History of Present Illness Ñ sectio n, but no positive findings

regarding her back under the Ð General Examination. Ñ Lumbago and

sciatica remain under the Ð Assessments Ñ section.

4 6 . A.S. saw Dr. Dehgan at her next appointment, July 17,

2014. A.S. continued to see Dr. Dehgan because she ne eded the

medication he prescribed. Again, her questionnaire mentions some

mild depression , but not back pain. RespondentÓs notes, on the

other hand, indicate under Ð History of Present Illness Ñ that she

complains of low back pain radiating to the hips, lo wer limbs,

feet and ankles. It also notes abdominal pain, and references

the history of 13 abdominal surgeries. With respect to his

examination, Respondent notes tenderness and lumbar paraspinals,

sacroiliac and buttocks , that her range of motion of the lumbar

spine is associated with pain, and that her Ð[ s ] traight leg

raising is positive on both sides. Ñ RespondentÓs notes continue

to list lumbago as her primary complaint, as well as listing

sciatica and chronic pain syndrome along with her opioid

depend ence.

47. A.S. testified that at the July 17 visit, she told

Dr. Dehgan that her back was hurting, not because of a problem

originating with her back, but because the pain in her abdomen

caused her to hunch over and to be unable to stand up straight.

A. S. testified that Respondent felt her back and ran h is hand

down her buttock on the right side , not in the manner one would

expect as part of a physical examination, but more like a caress.

When asked to specify what part of her body he touched, A.S.

test ified that he went Ðlow,Ñ low enough f or it to be

inappropriate in that it was nowhere near her back, and

Respondent used only one hand.

48. A.S. testified that she had never had another doctor

examine her back before, but did not believe this examinatio n to

be appropriate. She told her sister that she would never go into

RespondentÓs office alone again. Assuming that the incident

occurred in July 2014, she did, however, return for one more

visit where Dr. Dehgan was present. It is unclear whether her

s ister went with her for this visit, but the medical records by

Respondent are consistent with those for the prior visit.

49 . A.S.Ós final visit occurred September 16, 2014, after

Dr. DehganÓs termination from the practice. At that time, she

was accompan ied by her sister and saw Dr. Chang as opposed to

Dr. Dehgan. When she was told that Dr. Dehgan had been let go,

she asked whether his termination was due to sexual harassment.

50 . A.S. is no longer going to JMG. She also is no longer

a Suboxone patien t, and has resumed taking opiates because her

pain is too intense to do without it. While she reported needing

additional surgery, she has been advised that she must stop

smoking before surgery can be performed. She continues to suffer

from depression, a nd will no longer see a male doctor because of

trust issues created by RespondentÓs actions. Following her

treatment with Respondent, A.S. experienced further depression

leading to a suicide attempt and involuntary hospitalization,

which was, in part, att ributable to the events described in this

proceeding.

51. Respondent testified that he has no recollection of

A.S., yet also testified that he remembers A.S. asking that he

examin e her for a hernia , and that she had a long scar from her

sternum to her pu bis . 5/ He attempted to discredit A.S.Ós

testimony by demonstrating the differences between her

recollection of the visits and what is written in RespondentÓs

notes. Specifically, A.S. was adamant that she only complained

about back pain on one occasion, at her July 2014 visit.

RespondentÓs notes, however, indicate multiple claims of back

pain.

52. A.S.Ós handwritten questionnaire clearly reference back

pain on at least three occasions. They do not, however, include

any reference to pain radiating down her legs or into her feet.

Even the diagram on which A.S. marked the areas of pain in her

back for her initial visit indicate d that the pain was more at

the hip level than her buttock s . I n each instance where A.S. did

reference back pain in her question naires, the reference is in

connection with abdominal pain. Clear ly , the pain caused by her

adhesions and recurrent hernia was her primary complaint . In her

view, any back pain was ancillary to the abdominal pain that she

had lived with for years.

53. It also appears that many of the notes in RespondentÓs

medical records appear to be canned, or part of a template.

Andrea Pratt testified that the electronic medical records system

JMG used included templates that physicians could use , but were

not requ ired to be used. While Respondent denied using the

templates, given the grammar (or lack thereof) and identical

nature of some of the entries, use of the templates would explain

some of the medical entries. Further, while several of th e

visits contain di agnoses of lumbago and sciatica, the record is

clear that the primary purpose for A.S.Ós treatment with

Respondent always remained her treatment for opioid dependence.

54. Respondent also attempted to impeach A.S.Ós testimony

because of her drug use, 6/ and a positive drug test at her

August 13, 2014 , appointment, which reflected a positive result

for oxycodone. However, the toxicology confirmation report from

Essential T esting indicated a negative result for opiates.

Dr. Goldberger testified credibly that A.S. did not have

oxycodone in her system on August 13, 2014, and his testimony is

accepted.

55. Finally, Respondent attempted to explain the July visit

by stating that the touching A.S. contended was inappropriate was

actually part of a physical ex amination related to her back pain.

However, A.S.Ós description of RespondentÓs actions do es not

remotely match the description by any doctor who testified of

what constitutes an appropriate examination for back pain.

56. Dr. Waldbaum testified that a good examination of the

low back would start with seeing how the patient walks and

observing the patient standing up. A physician would look at the

patientÓs posture, check for scoliosis or curvature of the spine,

and would check the patientÓs range of mo tion. The physician

would perform a neurologic examination to check for things like

strength in the patientÓs legs and reflexes. He or she would

then palpate the back, including palpating down the middle, along

the bones of the spine, the paraspinal musc les, and the hips.

The physician would evaluate the structures going below the belt

line in the back, the muscles in the gluteal area. He or she

would push gently to palpate the area. Respondent proffered the

testimony of Dr s . Risch and Cordera on the s ame issue. While

their testimony was not considered because neither doctor had

been noticed as an expert in this proceeding, their testimony was

similar to Dr. WaldbaumÓs with respect to a proper examination.

Had their testimony been considered, it would only serve to

reinforce the testimony of Dr. Waldbaum. What A.S. credibly

described was not an examination of her back consistent with this

testimony .

57 . The more persuasive and compelling testimony

establishes that on three separate occasions, Respond ent touched

A.S. inappropriately by hugging her , by squeezing her breast , and

by caressing her buttocks.

58. Hugging a patient is not within the scope of the

professional practice of medicine. Squeezing a female patientÓs

breast outside the context of a breast examination is likewise

not within the scope of the professional practice of medicine.

Caressing a patientÓs buttocks is not part of an examination of a

patientÓs back for pain, and is not within the scope of the

professional practice of medicine .

Patient C.T.

59. Patient C.T. saw Respondent on one occasion. She went

to JMG and Dr. Dehgan for pain management related to her history

of avascular necrosis, a condition in which the bone marrow in

the joints deteriorates, causing pain. C.T. suffers with pain

primarily in the hips, knees, shoulders, and ankles. When she

presented to Dr. Dehgan, she was 46 years old.

60. During C.T.Ós visit, Respondent examined her back.

While it was reasonable for Respondent to examine her back given

her physical condition, he lifted her shirt to check her spine

without letting her know that he was going to do so, which caught

her by surprise. What is more troubling is that at the end of

the appointment, a medical assistant came in and left some

paperwork on Resp ondentÓs desk, and then left the room.

Respondent and C.T. were standing face to face. When she went to

leave, he bent down , placed his hand at the small of her back,

and kissed her in her ear, with his tongue going into her right

ear.

61. C.T. was st unned, and did not know what to do, so she

patted him on the back. No one else was in the room, and the

door was closed. Her focus at this point was to leave as quickly

as possible, so she took her appointment card and exited the

room. At the front desk , she told whoever could hear her that

she would not be returning, and went to her car to call her

adoptive mother. She called the office to speak to a supervisor,

but none was available.

62. C.T. did not know any of the other patients who

testified i n this proceeding. She filed a complaint with the

Department of Health because she believes that what Respondent

did was wrong. She interpreted his actions as sexual and is no

longer trustful of male physicians .

63. C.T.Ós testimony was clear, consiste nt, direct, and

compelling. Respondent tried to undermine her credibility by

dredging up a variety of painful episodes in her distant past,

and emphasizing her mental health diagnoses. In his Proposed

Recommended Order, he states:

What C.T. did not tell Dr. Dehgan is

interesting. She did not tell Dr. Dehgan

that she had been raped. She did not tell

him that six days prior to seeing him she was

treated at Flagler Hospital in St. Augustine,

for vertigo, right shoulder and right arm

pain, subsequent to a s lip and fall accident

occurring August 3, 2014. She did not tell

Dr. Dehgan that she has post traumatic stress

disorder. She did not tell Dr. Dehgan that

she had Attention Deficit Hyperactivity

Disorder. She did n ot tell Dr. Dehgan that

she had asthma. She did not tell Dr. Dehgan

that she had anxiety, anxiety with panic

attacks, and depression. She did not tell

Dr. Dehgan that she was, and that she had

been, a patient for many years under the care

of psychiatrist Dr. Emmanuel Martinez. She

did not tel l Dr. Dehgan that she lost 75

pounds in a period of 18 months. She did not

tell Dr. Dehgan that on numerous occasions,

she had tried to commit suicide.

64. First, with respect to some of the history Respondent

claims that C.T. omitted, there is not nec essarily a question on

the patient history form that she completed that would have

required the information to be provided. The form was focused on

the reason a patient presented to JMG, and, for the most part,

included questions regarding prior treatment that a patient has

received for the pain that cause d him or her to seek treatment

for pain management . It d id not, for example, ask about prior

hospitalizations in general , but rather, only ask ed about prior

surgeries . Second, RespondentÓs statements ab out C.T.Ós

purported non - disclosures in many respects are false.

Consultation with a psychiatrist or psychologist related to the

pain was disclosed on page 4 of the patient form , at Joint

Exhibit 3, page 16. Asthma was checked on the same form at

page 5, as wa s C.T.Ós disclosure of anorexia, now recovered. At

page 7 of the same form, C.T. disclosed that she has received

treatment for depression and anxiety, provide d Dr. Emmanuel

MartinezÓs name and telephone number, and further indicate d that

she s aw him every two months. The form ma de no inquiry regarding

suicide attempts , and had no question for which an answer

disclosing them would be re s ponsive .

65 . Respondent seemed to think that anyone with a history

of mental illness is automatically a suspect w itness who cannot

be believed. There is no support for such a contention in this

record. C.T.Ós mental health history from ten years prior to

this incident simply has no relevance to her testimony in this

case. C.T.Ós only memory difficulties at hearing were listing

which medications she had taken over the years, as she did not

have her medication list with her. Her reluctance to discuss

issues related to her mental health, especially issues related to

events over ten years old, did not impugn her credi bility as a

witness. Her memory of the events giving rise to this case was

clear and credible, and is accepted.

66. It is never within the scope of professional practice

for a physician to place his tongue in the ear of a patient.

67. Respondent present ed the testimony of three individuals

with whom he has worked who all testified concerning his

character and his general demeanor with patients. Thomas Pulzone

worked at Orthopedic Associates of St. Augustine, and knew

Dr. Dehgan through his association w ith that practice prior to

working with JMG. Mr. Pulzone th inks highly of Respondent.

However, he never directly observed Respondent conduct an

examination of any patient, and h is contact with Respondent since

Respondent left Orthopedic Associates has be en limited to a few

telephone calls.

68. Dr. Edward Risch is an orthopedic surgeon from whom

Respondent rented office space for approximately ten years.

Dr. Risch has not worked with Respondent since 2010 and never

directly observed RespondentÓs examinat ion of female patients.

69. Dr. Diana Cordero worked with Dr. Dehgan for

approximately six months of the time he was at JMG, and shares

space at his current practice location. Her work with Respondent

at JMG was limited , and she never saw him examine a patient.

There is no evidence that she, like RespondentÓs other witnesses,

was present when any of the events giving rise to this case took

place.

70. Respondent tried to impeach the testimony of each

patient based on inconsistencies between her recolle ction of her

treatment by Dr. Dehgan and what was contained in his medical

records for each of them. It was never established that any of

the patients had reviewed her medical records. More importantly,

it was never established that what was written in t hose records

was an accurate statement of the care and treatment actually

given .

71. For example, Respondent testified that he would perform

a comprehensive examination for a first visit , but not for

follow - up visits. The medical records seem to indica te a

comprehensive visit was performed every time, and all three

patients did not recall much of an examination at all.

Respondent testified that he would not generally perform a

Babinski test (a test of a patientÓs reflexes by scratching the

bottom of hi s or her foot) for a fol low - up Suboxone appointment ,

yet this test wa s routinely referenced as completed in

RespondentÓs medical records. Given the marked disparities

between all three patientsÓ memories of their appointments and

the contents of the medic al records, as well as the internal

inconsistencies noted in A.S.Ós records, RespondentÓs medical

records appear to be less than reliable. Accordingly, they do

not provide a basis for discounting the testimony of the three

patients whose testimony was cle ar, consistent, and compelling.

CONCLUSIONS OF LAW

7 2 . DOAH has jurisdiction of the subject matter and the

parties to this action pursuant to sections 120.569 and 120.57(1)

(201 5 ) .

7 3 . This is a proceeding whereby the Department seeks to

revoke Respond entÓs license to practice medicine. The Department

has the burden to prove the allegations in the Amended

Administrative Complaint by clear and convincing evidence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Tur lington , 595 So. 2d 292 (Fla. 1987). As

stated by the Supreme Court of Florida :

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony m ust

be precise and lacking in confusion as to the

facts at issue. The evidence must be of such

a 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 estab lished.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

burden of proof may be met where the evidence is in conflict;

however, Ðit seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1 st DCA 1991).

7 4 . Counts I, II, and III of the Amended Administrative

Complaint charge Respondent with violating section 456.072(1)(v)

with respect to his care and treatment of patients A.S., S.M.,

and C.T., respectively . Counts IV, V, and VI charge Respondent

with violating section 458.331(1)(j), for the same three patients

based on the same conduct.

7 5 . Section 456. 072(1)(v) provides in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(v) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

7 6 . Section 456.063 provides in pertinent par t:

(1) Sexual misconduct in the practice of a

health care profession means violation of the

professional relationship through which the

health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate family

member, guardian, or representative of the

patient or client in, or to induce or attempt

to induce such person to engage in, verbal or

physical sexual activity outside the scope of

the professional practice of such health care

profession. Sexual mi sconduct in the

practice of a health care profession is

prohibited.

7 7 . Section 458.331(1)(j) provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(j) Exercising in fluence 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.

7 8 . Section 458. 329, also cited in the Amended

Administrative Complaint, provides:

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 physici an 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.

7 9 . The Board of Medicine has adopted a rule implementing

sections 458.329 and 458.331 ( 1)(j). Florida Administrative Code

Rule 64B8 - 9.008 provides in pertinent part:

(1) Sexual contact with a patient is sexual

misconduct and is a violation of Sections

458.329 and 458.331(1)(j), F.S.

(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 of the phys ician, the patient

or any third party; or

3. May reasonably be interpreted by the

patient as being sexual.

80 . The Department has proven all six counts in the Amended

Admin istrative Complaint by clear and convincing evidence. S.M.

testified credibly t hat she interpreted RespondentÓs hug, kiss,

provision of his cell phone number, and offer to take her to

lunch as romantic in nature, and the hug and kiss clear ly

constitute sexual contact. RespondentÓs hug, squeezing of A.S.Ós

breast, and caressing of A .S.Ós buttocks beyond the appropriate

bounds of a back examination are also sexual contact. Finally,

kissing C.T., including placing his tongue in C.T.Ós ear , is

sexual contact. All of these actions are outside the boundaries

of an appropriate physician - patient relationship and violate

sections 456.072(1)(v) and 458.331(1)(j) as alleged in the

Amended Administrative Complaint.

8 1 . The Board of Medicine has adopted Disciplinary

Guidelines to provide notice to the public and to licensees

regarding the ran ge of appropriate penalties to be imposed for

violations of chapters 456 and 458. Fla. Admin. Code

R. 64B8 - 8.001. For a violation of section 456.0 7 2(1)(v) or

section 458.331(1)(j) , the guideline penalty as it existed in

2013 and 2014, when these violati ons took place, is from a one -

year suspension, followed by a period of probation and a

reprimand, and an administrative fine of $5,000, to revocation or

denial of licensure and an administrative fine of $10,000.

8 2 . Rule 64B8 - 8.001(3) also provides agg ravating and

mitigating factors for the Board to consider should a penalty

outside the guidelines be considered. These factors are also

helpful in determining where , within the range of permissible

penalties , discipline should be imposed. Among those fac tors

identified in the rule are the exposure of patient or public to

injury or potential injury , the legal status of the licensee at

the time of the offense(s) , the number of counts or separate

offenses established , and the licenseeÓs disciplinary history .

The rule also provides in pertinent part:

(4) It is the intent of the Board to notify

applicants and licensees whom it regulates

under Chapter 458, F.S., of the seriousness

with which the Board deals with sexual

misconduct in or related to the practice of

medicine. In particular, the Board has

identified those situations in which the

sexual misconduct is predatory in its

character because of the particular

powerlessness or vulnerability of the

patient, or because of the licenseeÓs history

or manipulatio n of the physician/patient

relationship. Therefore, it is the policy of

the Board, where any one of the following

aggravating conditions are present in a

sexual misconduct case, to consider

revocation as an appropriate penalty:

(a) Where controlled subst ances have been

prescribed, dispensed or administered

inappropriately or excessively, or not in the

course of the physicianÓs professional

practice, or not in the patientÓs best

interests.

(b) Where the relationship between the

licensee and the patient i nvolved psychiatric

or psychological diagnosis or treatment.

(c) Where the patient was under the

influence of mind altering drugs or

anesthesia at the time of any one incident of

sexual misconduct.

(d) Where the licensee is under suspension

or probation at the time of the incident.

(e) Where the licensee has any prior action

taken against the authority to practice their

profession by any authority, or a conviction

in any jurisdiction, regardless of

adjudication, relating to sexual misconduct,

in appropri ate relationships with patients,

or sex - related crimes.

(f) Where the patient is physically or

mentally handicapped at the time of the

incident.

(g) Where the patient is a minor at the time

of the incident.

(h) Where the patient is an alien, whether

leg al or illegal; or a recipient of federal

or state health care benefits, or state

family aid at the time of the incident.

(i) Where the patient has a history of child

sexual abuse, domestic violence, or sexual

dysfunction, which history is known to the

lic ensee at the time of the sexual

misconduct.

8 3 . The facts in this case demonstrate that Respondent

committed sexual misconduct with three different patients. The

conduct has undermined each patientÓs trust in male physicians,

thus limiting the patients Ó health care choices. With respect to

all three patients , controlled substances were prescribed, but

were done so appropriately. While C.T. had a history of sexual

abuse, it is not clear how much of that history Respondent

actually knew.

8 4 . However , a ll three patients were seeing Respondent for

pain management and w ere seeking treatment to recover from opiate

dependency or avoid it, and were in a position where finding

another treatment provider would be difficult. Respondent

violated the trust all three patients placed in him. The

undersigned is mindful of the significant investment Respondent

has in his education and experience as a medical doctor, but the

b ehavior demonstrated in this case cannot be condoned and cannot

be allowed to continue.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order finding that Respondent violated sections 456.072(1)(v) and

458.331(1)(j), as alleged in the Amended Administrati ve

Complaint. It is further recommended that the Board issue a

letter of reprimand against RespondentÓs license; suspend his

license for a period of three years, followed by five years of

probation; impose a permanent restriction that Respondent may not

e xamine or treat female patients without a licensed health care

provider in attendance; require completion of a medical ethics

course prior to reinstatement of his license; and impose an

administrative fine of $30,000.

DONE AND ENTERED this 3 1st day of Aug ust , 2016 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1st day of August , 2016 .

ENDNOTE S

1/ Dr. Dehgan testified that in 1985, he suffered a chemical burn

on his hand that required surger y, and he could no longer

operate. He also testified that he entered an agreement with the

Board of Medicine wherein he agreed not to do invasive medicine,

and has adhered to this agreement. Similarly, during his

deposition, Respondent testified that cha rges were filed against

his license by the Department of Professional Regulation (which

at that time was the agency providing support services for the

Board), and that he placed his license in inactive status,

completed a residency in physical medicine reh abilitation, and

then petitioned the Board to re - activate his license, after which

he re - entered private practice.

The Final Order of the Boar d, however, is less than helpful.

The Order has attached to it several Administrative Complaints

that the par ties apparently sought to resolve by stipulation.

The proposed settlement does provide for Respondent to place his

license in an inactive status until he can demonstrate his

ability to practice medicine with reasonable skill and safety to

patients, and fu rther provides that this demonstration would

include successful completion of a Board - approved residency

program. However, the Final Order filed June 21, 1988, indicates

that the Board rejected the proposed stipulation, and there is no

indication what, if anything, was considered as a counter -

proposal. While it can be inferred that the final resolution

involved something along similar lines, there is no indication in

this record to establish the particulars of that final

resolution. What is clear is that the charges against Respondent

in the 1980s had nothing to do with allegations of sexual

misconduct.

2/ There is a discrepancy in RespondentÓs medical records for

S.M. with respect to her initial prescription. The patient

record for March 12, 2014 , lis ts under ÐTreatmentÑ to start

Subutex, start Zoloft, start Xanax, and refer to Counseling and

Recovery Breakthroughs. The sign - off status for the patient

record for this initial meeting is listed as pending, and

indicates that it was electronically signed on December 31, 2014,

well after Dr. DehganÓs termination from the practice. At the

next visit on March 26, 2014, under Ð History of Present Illness, Ñ

Dr. DehganÓs notes stated that Ð[s]he was initially seen in 2

weeks ago [sic] given a prescription for S uboxone. She states

that she had abdominal pain taken [ sic ] Suboxone. She tried

Subutex and tolerated pretty well.Ñ This patient note sign - off

status is listed as completed, and the patient note is

electronically signed on March 28, 2014. S.M.Ós testim ony is

consistent with the March 26 note.

3/ Based on her testimony, as well as the other evidence

presented, the undersigned has described each inciden t in the

context of the appointment at which it is most likely to have

occurred. While it is possible that the incidents and the

appointment dates are not accurately paired, the more persuasive

evidence makes this chronology the most likely. Regardless of

the dates of the incidents, and whether they corresponded with

the appointment identified for each i ncident, A.S.Ós testimony

was clear , consistent , and convincing about what happened and the

relative time period for it.

4 / Not all of the patient questionnaires are dated, but assuming

that they are in chronological order , consistent with the rest of

th e patient records , given the ones that are dated, it is

relatively easy to match them up with the different medical

appointments.

5/ In his depo sition , Respondent testified that he does not

remember any of the three patients, but that he had prepared

n otes from his review of the patient records related to this

case. He then relayed an incident that he indicated occurred on

September 10, 2014, in which his medical assistant was present.

He testified that A.S. asked the medical assistant to leave

becaus e she wanted to speak with Dr. Dehgan privately. When the

medical assistant told her that it was against office policy for

her to leave, A.S. got upset and left, and as she went through

the waiting room, said that Dr. Dehgan makes out with his

patients. The problem with Dr. DehganÓs story is that A.S. did

not have an appointment on September 10, 2014. Dr. Dehgan also

testified that he generally left the examination room door open

six to 12 inches, and that while he never hugged patients they

sometimes in itiated a hug with him. W ith respect to A.S., his

notes indicate that he n ever found that she had a hernia. As

noted at paragraph 40 , his medical records state th at he did note

the presence of a hernia during her visit on April 18, 2014.

Dr. DehganÓs ve rsion of events varies significantly from the

other witnesses in this case, and is rejected.

6/ He stated in his deposition that all three complainants Ðhad

nothing to lose. All you have to do, look at their history,

their background. TheyÓre all drug abusers. TheyÓre all

divorced. They all have certain social issues.Ñ While

Respondent clearly made these comparisons to cast aspersions on

their credibility, these same descriptions could also be a basis

for making them vulnerable to exploitation.

COP IES FURNISHED:

Thomas R. Brown, Esquire

The Brown Law Firm

6277 Dupont Station Court East , Suite 3

Jacksonville, Florida 32217

(eServed)

Chad Wayne Dunn, Esquire

Corynn C. Gasbarro, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypre ss Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of H ealth

4052 Bald Cypress Way, Bin C03

Tallahassee, Florida 32399 - 3253

(eServed)

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 Order in this case.