16-006488PL Department Of Health, Board Of Medicine vs. Samy F. Bishai, M.D. Status: Closed Recommended Order on Friday, May 5, 2017.

Summary: Petitioner established by clear and convincing evidence that Respondent committed sexual misconduct with four patients. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 16 - 6488PL

SAMY F. BISHAI, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to not ice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on March 14 and 15, 2017 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) .

APPEARANCES

F or Petitioner: Corynn Colleen Alberto, Esquire

Allison M. Dudley, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Michael L. Smith, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

STATEMENT OF THE ISSUE S

Whether Respondent violated section 456.072(1)(v), Florida

Statutes (2012 - 2013) , as alleged in the Amended Administrative

Complaint ; and , if so, what penalty should be imposed for his

conduct.

PRELIMINARY STATEMENT

On June 26, 2015, Petitioner, Department of Health , Board of

Medicine (DOH or the Department), filed a four - count Amended

Administrative Complaint against Respondent, Samy F. Bishai, M.D.,

alleging that Respondent committed sexual misconduct with respect

to four patients, A.P., J.T., E.S., and L.P. On September 23,

2016, Respondent disputed the allegations in the Amended

Administrative Complaint and requested a hearing pursuant to

section 120.57(1), Florida Statutes (2016) . On November 4, 2016,

the matter was referred to the Division of Administrat ive Hearings

for the assignment of an administrative law judge.

The disputed - fact hearing in this case was initially

scheduled for February 8 through 10, 2017. On January 9, 2017,

Respondent filed his Unopposed Motion for Continuance. By notice

issu ed January 12, 2017, the case was rescheduled for

March 14 through 16, 2017.

Petitioner presented five witnesses, three of whom (patients

E.S., A.P. and J.T.) testified in person at the hearing. The

testimony of patient L.P. and PetitionerÓs expert witn ess,

Kevin Nowicki, M.D., was received in the form of deposition

transcripts. Respondent also presented four witnesses, two of whom

(patients C.W. and S.L.) testified in person at the hearing. The

testimony of patients G.T. and E.C. was received in the form of

deposition transcripts.

PetitionerÓs Exhibits 1 through 6, 8 and 9 were admitted into

evidence. RespondentÓs Exhibits 5 and 6 were admitted into

evidence, subject to the limitation that any character evidence

would not be considered, and Responde ntÓs Exhibits 11, 12, 13, and

20 were also admitted into evidence. PetitionerÓs Exhibit 7 and

RespondentÓs Exhibit 2 were admitted as Joint Exhibit 1.

Official recognition was taken of a prior citation by the

Board of Medicine against RespondentÓs licen se in DOH case number

1992 - 14986, which was identified as PetitionerÓs Exhibit 10. At

the request of Respondent, official recognition was taken of :

Department of Health v. Deshon A. Davis, C.N.A. , Case

No. 15 - 1868PL (Fla. DOAH Sept. 11, 2015) , rejected i n part ,

Case No. 20 14 - 06796 (Fla. DOH Jan. 4, 2016); Department of Health

v. Steven Read, D.C. , Case No. 16 - 2313PL (Fla. DOAH Sept. 29,

2016; Fla. DOH Dec. 12, 2016); United States of America v. Perez ,

Case No. 8:15 - cr - 175 - T - 30EAJ (M. D . Fla. 2016 ) ; and U nited States of

America v. Luis , Case No. 8:15 - cr - 175 - T - 30EAJ (M. D . Fla. 2016 ) . At

the request of Petitioner, official recognition was taken of :

Florida Administrative Code Rules 64B8 - 8.001 and 64B - 9.008 ;

Department of Health v. Robert Dehgan, M.D. , Case No. 16 - 1595PL

(Fla. DOAH Aug. 31, 2016; Fla. DOH Dec. 9, 2016) ; and Department of

Health v. Edwardo Williams , M.D. , Case No. 15 - 5528PL (Fla. DOAH

Mar. 4, 2016; Fla. DOH Apr. 26, 2017).

The two - volume Transcript of the proceedings was filed with

D OAH on A pril 5, 2017. Petitioner and Respondent each filed a

proposed recommended order , and the same have been considered in

the preparation of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of medicine pursuant to section 20.43 and

chapters 456 and 458, Florida Statutes. The Board of Medicine is

the professional licensing board charged with final agency action

with respect to physicians licensed pursuant to chapter 458.

2. At all times rel evant to the instant proceedings,

Respondent has been a licensed physician in the State of Florida,

and holds license number ME 17784.

3. At all times relevant to the instant proceeding,

Respondent was employed by AmeriMed Diagnostic Services, Inc.

(Amer iMed) , 500 West Martin Luther King Jr. Boulevard, Tampa,

Florida.

A. Patient A.P.

4. A.P., a male patient, presented to Respondent at AmeriMed

on September 11, 2013, and April 8, 2014, for medical evaluation

related to an ongoing workersÓ compensation claim. During both

appointments, A.P. complained of severe low er back pain and pain

radiating down his left leg. A.P. did not complain of a hernia or

pain in his genitals.

5. Respondent performed a physical examination on A.P on

September 11, 2013. D uring the examination, Respondent instructed

A.P. to undress down to his underwear and lie on his back on an

examining table. Respondent removed A.P.Ós underwear while A.P.

was lying on the examining table. Respondent moved A.P.Ós legs

back and forth and then touched the area in between A.P.Ós legs

underneath his testicles. While doing this, Respondent ÐliftedÑ

A.P.Ós penis and moved it back and forth. After several minutes

of Respondent touching A.P. in this manner, A.P. ejaculated. A.P.

tried to remo ve himself from the examining table, but Respondent

pressed on A.P.Ós stomach and told him to Ðjust relax . Ñ

Respondent then cleaned the sem e n off of A.P. and told him to get

dressed. After the appointment, A.P. felt embarrassed and ashamed

and believed t hat what happened during the examination was his

fault because he had not Ðbeen with a woman in quite some time.Ñ

6. On April 8, 2014, A.P. presented to Respondent for a

second examination. During the examination, Respondent instructed

A.P. to undress down to his underwear and lie on his back on the

examining table. While A.P. was on the examining table,

Respondent removed A.P.Ós underwear and used his fingers to

manipulate A.P.Ós penis Ðback and forth,Ñ which eventually caused

A.P. to ejaculate. A.P. tried to remove himself from the

examining table but Respondent, like before, told him to Ðrelax,Ñ

and reminded A.P. that he needed the examination for his workersÓ

compensation case. After A.P. ejaculated, Respondent Ðcleaned upÑ

and instructed A.P. to get off the table. Respondent then told

A.P. to walk back and forth across the examination room, and A.P.

complied with RespondentÓs directive. A.P. was naked when he

walked back and forth across the room.

7. After the second appointment, A.P. believed that what

happened to him while being examined by Respondent was not his

fault, and he believed that RespondentÓs examination was sexual in

nature. A.P. testified that he was sexually molested as a child

and knew the difference between an appropriate med ical examination

and molestation. As a result of these incidents with Respondent,

A.P. has reservations about being examined by another physician in

Florida.

8. RespondentÓs patient examination notes for the

September 11, 2013 , and April 8, 2014, appoi ntments with A.P. do

not document a genital or hernia examination.

9. After leaving the appointment on April 8, 2014, A.P. was

upset about what Respondent had done to him so he called his

girlfriend who suggested that he report the matter to the police.

A.P. subsequently went to the police department and reported

RespondentÓs conduct.

10. A.P. testified that he reported the incident to the

police on April 8, 2014. Respondent attempted to challenge A.P.Ós

credibility by presenting A.P. with a copy of t he police report

which identified April 14, 2014, as the date the police report was

made. The police report was not admitted into evidence and there

was no testimony from the author of the report; therefore, it is

unclear whether the date in the report re fers to when A.P.

reported the incident or when the police department generated the

report. Regardless, A.P. is certain that on April 8, 2014, he

reported the incident to the police department and his testimony

in this regard is credible.

11. On cross - e xamination, Respondent attempted to further

discredit A.P.Ós testimony by noting that A.P. stated that he did

not remember seeing any of the other physicians at AmeriMed until

after his first visit with Respondent.

12. Patient A.P.Ós records document tha t he did see another

physician before being evaluated by Respondent. However, this

fact does not contradict or confuse his testimony about what

occurred during his two appointments with Respondent.

Additionally, in light of the fact that these appointment s

occurred more than three years ago, it is not unreasonable to

believe that A.P. might not remember clearly which physician he

initially saw at AmeriMed.

13. Respondent also attempted to impeach A.P. by asking him

about his history with pain medications . A.P. originally

testified that he was taking hydrocodone at the time he first saw

Respondent. After RespondentÓs counsel presented A.P. an excerpt

from A.P.Ós medical records from AmeriMed, A.P. remembered that he

was also taking morphine. Respondent suggests that A.P. concealed

that he was taking morphine, and should therefore not be believed,

but A.P. explained that he believed morphine was a Ðnon - narcoticÑ

and admitted that he is not familiar with medications.

14. A.P. testified that his medicatio ns did not impact his

ability to observe or perceive the events that happened during his

appointments with Respondent.

15. With regard to the incidents that occurred while he was

being examined by Respondent, A.P.Ós testimony was precise,

lacking in co nfusion, and credible.

B. Patient J.T.

16. J.T., a male patient, presented to Respondent at

AmeriMed for medical appointments on February 11, and March 20,

2014. At both appointments J.T. complained of low er back pain,

pain radiating down his legs, a nd numbness and tingling in his

feet. J.T. did not complain of a hernia or pain in his genitals.

17. J.T. presented to Respondent at AmeriMed because he was

told that Respondent could assist him with his federal workersÓ

compensation claim.

18. During the appointment on February 11, 2014, Respondent

performed a physical examination on J.T. Prior to the

examination, Respondent told J.T. to remove all of his clothes,

except for his underwear, and lie on his back on the examination

table. J.T. complied with RespondentÓs directive, and while J.T.

was lying on his back , Respondent removed J.T.Ós underwear and

told J.T. that he needed to Ðcheck his hips.Ñ With his hands,

Respondent pushed into J.T.Ós inner thigh area near his groin.

Respondent then told J .T. that he was going to Ðcheck for

sensation.Ñ Respondent touched a small plastic instrument with a

wheel on it to J.T.Ós feet and legs. Respondent moved the

instrument up to J.T.Ós inner thigh and then grabbed J.T.Ós penis

and Ðpulled it up.Ñ Responde nt rolled the instrument on each side

of J.T.Ós penis and asked J.T. where he felt it more. Respondent

also touched the instrument on the sides of J.T.Ós scrotum.

Respondent did this for four to five minutes.

19. At one point, while Respondent was usi ng the instrument

on J.T.Ós genitals, Respondent told J.T. that he was Ðchecking for

a hernia.Ñ Next, Respondent instructed J.T. to stand up and walk

back and forth across the exam room on his tiptoes and heels.

J.T. complied while Respondent observed hi m. After walking back

and forth, Respondent told J.T. to stand in front of him so he

could again Ðcheck for a hernia.Ñ While Respondent sat on a stool

and J.T. stood naked in front of him, Respondent grabbed J.T.Ós

scrotum and used his hands to manipulat e J.T.Ós testicles. J.T.

described RespondentÓs touching of his scrotum as ÐfondlingÑ

rather than a touching that resembled a legitimate hernia

examination.

20. J.T. testified that he had been checked for a hernia

previously by other physicians and des cribed those examinations as

Ðvery differentÑ from RespondentÓs examination. According to

J.T., in previous exams, he was required by other physicians to

stand up as the doctor felt either side of his testicles and

instructed him to turn his head and coug h. J.T. explained that

the ÐlegitimateÑ hernia examinations lasted seconds, and the

doctor did not move his testicles around in the way that

Respondent had.

21. RespondentÓs patient examination note for the

February 11, 2014, appointment with J.T. doe s not document a

genital or hernia examination.

22. J.T. testified that following his appointment with

Respondent on February 11, 2014, he felt ÐweirdÑ because he had

never experienced an examination like the one Respondent

performed.

23. J.T. presente d to Respondent for a second time on

March 20, 2014, to obtain additional information requested by the

office of workersÓ compensation. During the appointment on

March 20, 2014, Respondent told J.T. that he needed to do another

examination because he ne eded to make sure he ÐdidnÓt miss

anything.Ñ

24. On March 20, 2014, Respondent performed a second

physical examination on J.T. Respondent instructed J.T. to

undress down to his underwear, and to lie on his back on the

examining table. While on the exa mining table, Respondent removed

J.T.Ós underwear and used the same plastic instrument as before on

each of J.T.Ós legs, penis and scrotum.

25. Respondent then instructed J.T. to get off the table and

walk back and forth across the room. J.T. complied with

RespondentÓs directive and did so while completely undressed.

26. After walking back and forth, Respondent asked J.T. to

stand in front of him as Respondent sat on a stool. Respondent

squeezed one side of J.T.Ós scrotum and then the other.

Respond ent took about 45 seconds squeezing each side of J.T.Ós

scrotum and advised J.T. that he believed he had a Ðslight

hernia.Ñ J.T. described the way Respondent squeezed his scrotum

as Ðfondling.Ñ

27. Respondent did not document that he examined J.T.Ós

gen itals or checked for a hernia in his patient examination note

for the appointment on March 20, 2014.

28. J.T. filed a police report against Respondent on

August 26, 2014. J.T. also filed a formal complaint with the

Department shortly thereafter.

29. The incidents with Respondent have negatively affected

J.T. and have caused him to be hypercautious and guarded when

seeing other doctors.

30. When questioned about his reason for waiting nearly four

months to file a complaint with the Department, J.T. credibly

testified that he was confused and embarrassed by the incidents.

According to J.T., it was not until he found out that there were

other patients with similar experiences that he knew something was

inappropriate about the way that Respondent had e xamined him, and

it was then that he decided to file a complaint. Patient J.T.Ós

explanation was clearly stated and is credible.

31. When asked about communications he had with staff and

patients at AmeriMed, J.T. credibly testified that he was never

to ld to file a complaint against Respondent, and that he did not

conspire with any other patients to make up false allegations

against Respondent.

32. With regard to the incidents that occurred while he was

being examined by Respondent, J.T.Ós testimony w as precise,

lacking in confusion, and is credible.

C. Patient E.S.

33. Between January 2013 and June 2013, E.S., a male

patient, presented multiple times to Respondent for medical

evaluation related to his federal workersÓ compensation claim.

E.S.Ós c omplaints included pain in both feet, flattened arches of

both feet, plantar fasciitis, and severe pain on standing and/or

walking. E.S. did not complain of a hernia or pain in his

genitals.

34. On January 14, 2013, E.S. arrived at AmeriMed for an

init ial visit with Respondent. Respondent performed a physical

examination of E.S. and during the course of the examination

Respondent told E.S. to take off all of his clothes. During the

examination, while E.S. sat on the examining table, Respondent

grabbed E.S.Ós penis and moved it around with his hands.

Respondent then instructed E.S. to get off of the table and walk

back and forth across the examination room. E.S. did so, while

still completely undressed. After walking back and forth,

Respondent told E .S. to stand in front of him. E.S. complied with

RespondentÓs directive, and while doing so Respondent held E.S.Ós

penis and asked him to turn his head to the left and to the right.

35. E.S. presented to Respondent on February 15, 2013, at

which time Re spondent performed a physical examination.

Respondent told E.S. to take off all of his clothes and to lie on

the examining table. During the examination, while E.S. was on

the table naked, Respondent touched and pulled on E.S.Ós penis.

E.S. described th e touching as Ðstroking.Ñ Respondent instructed

E.S. to walk back and forth across the room, and E.S. complied.

E.S. then stood naked in front of Respondent, and while doing so

Respondent held E.S.Ós penis and asked him if he felt pain. While

holding E. S.Ós penis, Respondent told E.S. to turn his head and

cough. Respondent did not touch E.S.Ós testicles or the area

underneath E.S.Ós testicles during the examination.

36. E.S. testified that during each of his three subsequent

visits with Respondent, h e was required to completely undress, and

that Respondent touched or in some way manipulated his penis.

E.S. testified that the manner in which Respondent touched his

penis was not the same on every appointment. For instance, during

one of the visits, E. S. testified that Respondent tried to ÐopenÑ

his penis by pulling down on the top of it.

37. E.S. was treated by other physicians for his feet and

back pain prior to being evaluated by Respondent. While being

examined by the other physicians, E.S. testi fied that he was not

naked, and the physicians did not touch his penis. Additionally,

E.S. testified that his current physician, who is also treating

him for pain in his feet and back, does not ask him to undress

completely and does not touch his penis du ring examinations.

38. Patient E.S. has had hernia examinations by other

physicians in the past, and during those examinations he had to

remove his pants for a short period of time to allow the physician

to push up on his testicles, while he turned his h ead to the right

and the left and coughed. E.S. testified that RespondentÓs exam

was different because E.S. was naked and Respondent ÐheldÑ his

penis, which no other doctors have done.

39. Respondent did not document that he examined E.S.Ós

genitals or checked for a hernia in any of his patient examination

notes for appointments between January 2013 and June 2013.

40. E.S. was vulnerable when he presented to Respondent for

medical evaluation. E.S. had spent years dealing with his workersÓ

compensation claim, a process which he described as difficult. He

was assured that Respondent could help him with his claim. During

the first examination, E.S. ÐblankedÑ while Respondent touched him

inappropriately because he assumed Respondent had to Ðcheck

everyth ingÑ and would Ðwrite a really good report.Ñ After the

second and third appointments, E.S. became concerned about the way

that he was being examined by Respondent. Nevertheless, E.S.

returned to Respondent for a fourth and fifth appointment because

he ne eded the examinations in order to comply with the requirements

for his workersÓ compensation claim.

41. With regard to the incidents that occurred while he was

being examined by Respondent, E.S.Ós testimony was precise,

lacking in confusion, and credibl e.

D. Patient L.P.

42. L.P., a male patient, presented to Respondent at

AmeriMed multiple times for medical appointments between

August 2012 and April 2014. L.P.Ós complaints included low er back

pain, pain in his hips, and pain radiating down the rig ht leg.

L.P. did not complain of a hernia or pain in his genitals.

43. During each appointment, L.P. was examined by Respondent

and instructed to take off all his clothes, including his

underwear. L.P. was also instructed by Respondent to lie on the

ex amining table. While on the table, Respondent rubbed a plastic

instrument up and down L.P.Ós legs, between his legs, and on his

penis. According to L.P., Respondent would also pull the foreskin

back on L.P.Ós penis, manipulate L.P.Ós penis with his hands , and

touch L.P.Ós testicles. During the examinations, Respondent

instructed L.P. to walk naked back and forth across the

examination room. Respondent also had L.P. stand in front of him

so that Respondent could purportedly Ðcheck for a hernia.Ñ In

Ðche cking for a hernia,Ñ Respondent held L.P.Ós penis in one hand

and then felt in between L.P.Ós legs with the other hand. L.P.

testified that Respondent did all of these things at every

appointment and that Respondent spent the majority of the

examination t ouching the instrument on L.P.Ós penis.

44. L.P. testified that he has been checked for a hernia

before but RespondentÓs purported hernia examination was Ðtotally

different.Ñ

45. Respondent did not document that he examined L.P.Ós

genitals or checked f or a hernia in any of his patient examination

notes.

46. L.P. described a long history of back pain, which

resulted from two work - related accidents, and noted that he had

seen other physicians for his back pain before presenting to

Respondent at AmeriMe d. According to L.P., none of his other

physicians required him to undress completely for an examination,

touched his genitals, or had him walk back and forth while naked.

Additionally, L.P.Ós current physician does not require him to

undress for examina tions.

47. L.P. explained why he never told anyone about the

inappropriate examinations until after Respondent stopped working

at AmeriMed. L.P. testified that RespondentÓs examinations made

him feel uncomfortable, but he continued to see Respondent bec ause

he was the only doctor he had. L.P. explained that he wanted to

say something about the inappropriate examinations but he remained

silent because he did not want to lose his workersÓ compensation

doctor. L.P. described the process of finding a docto r who

treated federal workersÓ compensation claim patients as difficult,

which is why he drove 138 miles from Ft. Myers to Tampa for his

appointments with Respondent.

48. Respondent, in an attempt to impeach L.P., suggests that

there was collusion betwe en L.P., the staff and other patients at

AmeriMed to make false accusations against Respondent. L.P.

testified credibly that he was never asked by AmeriMed staff or

anyone else to fabricate allegations against Respondent.

49. With regard to the incident s that occurred while he was

being examined by Respondent, L.P.Ós testimony was precise,

lacking in confusion, and credible.

E. RespondentÓs witnesses

50. Respondent presented four witnesses: C.W.; S.L.; G.T.;

and E.C. These individuals are all former U.S. Air Marshals and

were workersÓ compensation patients treated by Respondent at

AmeriMed. Patients C.W., S.L., G.T. and E.C. all know each other

through the U.S. Air Marshal Service.

51. Through his witnessesÓ testimony, Respondent seeks to

prove t hat AmeriMed staff solicited complaints against him, and

that the patients involved in this case had ulterior motives in

making the allegations against Respondent. None of RespondentÓs

witnesses testified, however, that they were solicited by anyone

to ma ke a complaint against Respondent, and their testimony was

based largely on rumor and speculation. Additionally, Respondent

presented no evidence showing that any of the patients in this

case had an incentive, financial or otherwise, to fabricate the

alle gations against Respondent.

F. Expert testimony

52. Dr. Kevin Nowicki, M.D., testified as a medical expert

for Petitioner. Dr. Nowicki is a licensed medical doctor in the

State of Florida and is board - certified in orthopedic surgery.

Dr. Nowicki perf orms similar examinations on patients with

orthopedic pain, including workersÓ compensation patients.

53. Dr. Nowicki testified that a physical examination,

within the professional scope of practice, on a patient with

complaints of low er back pain, pain radiating down the legs, or

numbness and tingling in the feet, does not require the patientÓs

underwear to be removed. A physical examination, within the

professional scope of practice, on a patient with complaints of

pain in both feet, flattened arches i n both feet, plantar

fasciitis, and pain on standing and/or walking would be limited to

the area of the body below the knee , and the patient does not need

to be naked. Additionally, according to Dr. Nowicki, it is

unnecessary and medically unjustified to squeeze the scrotum, pull

on the penis, use an instrument to touch the sides of the penis,

or require a patient to walk back and forth across the room naked

for an orthopedic examination.

54. Dr. Nowicki also testified that when checking for a

hernia, there may occasionally be a need to touch the patientÓs

scrotum, but such touching should take five to ten seconds and

does not require any touching of the patientÓs penis.

55. Dr. NowickiÓs medical opinions with regard to orthopedic

examinations and her nia examinations are accepted. His testimony

is found to be credible and uncontroverted.

56. Respondent did not offer the testimony of an expert

witness to counter Dr. NowickiÓs testimony. Furthermore,

Respondent chose not to testify at the hearing and invoked his

Fifth Amendment privilege against self - incrimination.

CONCLUSIONS OF LAW

57. DOAH has jurisdiction of the subject matter and the

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

58. This is a proceeding whereby the Depart ment seeks to

revoke RespondentÓs 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 and Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 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

distinctl y remembered; the testimony must 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

a llegations sought to be established.

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

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

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

however, Ðit seems to preclude evi dence that is

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

986, 988 (Fla. 1st DCA 1991).

59. Counts I through IV of the Amended Administrative

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

by engaging in sexual mi sconduct as defined and prohibited in

section 456.063(1). The 2012 and 2013 codification s of the

statutory references, which are identical, provide in pertinent

part:

456.063 Sexual misconduct; disqualification

for license, certificate, or registration.

(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

r elationship to engage or attempt to engage

the patient or client, or an immediate fami ly

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 miscon duct in the practice

of a health care profession is prohibited.

456.072 Grounds for discipline; penalties;

enforcement.

(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).

60. Regarding the inappropriate examinations Respondent

performed on patients A.P., J.T., E.S., and L.P., Petitioner proved

by clear and convincing e vidence that Respondent violated section

456.072(1)(v), by engaging in, or attempting to engage in, sexual

misconduct with each patient as defined and prohibited in section

456.063(1), and as alleged in each count of the Amended

Administrative Complaint. Patients A.P., J.T., E.S. and L.P.

testified clearly and convincingly about the events that occurred

during their examinations by Respondent. Each patient sought out

the treatment of Respondent for various work - related injuries.

Each patient needed treat ment and required assistance with a

workersÓ compensation claim. Respondent took advantage of the

vulnerabilities of the patients and the trust they placed in

Respondent by inappropriately fondling and touching each patient Ó s

genitalia. Respondent furthe r abused the physician - patient

relationship by requiring each patient to unnecessarily remove all

clothing and instructing them to walk around the room while naked.

There is no evidence that RespondentÓs actions during the

examinations were medically justi fied or were within the course of

a normal orthopedic examination, including a hernia examination.

61. The Board of Medicine has adopted Disciplinary

Guidelines to place licensees and members of the public on notice

of the range of penalties normally im posed for violations of

chapters 456 and 458, as well as the rules adopted pursuant

thereto. Fla. Admin. Code R. 64B8 - 8.001. For a violation of

section 456.092(1)(v), the guideline penalty, as it existed when

these violations took place, is from 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Medicine issue a

final order finding that Respondent, Samy F. Bishai, M.D.,

violated section 456.072(1)(v) as alleged in Counts I through IV

of the Amended Administrative Complaint. It is further

RECOMMENDED th at the Board revoke RespondentÓs license to practice

medicine, impose an administrative fine in the amount of $40,000,

and impose costs of investigation and prosecution.

DONE AND ENTERED this 5th day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 5th day of May , 2017 .

COPIES FURNISHED:

Corynn Colleen Alberto, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

M ichael L. Smith, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

(eServed)

Allison M. Dudley, Esquire

Florida Department of Health

Prosecution Services

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Florida Department of Health

4052 Bald Cypress Way, Bin C - 0 3

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.