18-004558PL Department Of Health, Board Of Medicine vs. Orly Pena-Sanchez, M.D. Status: Closed Recommended Order on Friday, April 19, 2019.

Summary: Petitioner failed to prove sexual activity within a patient-physician relationship, by clear and convincing evidence, where the alleged victim was the only direct witness and her varied accounts of what happened differed in numerous details.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 18 - 4558PL

ORLY PENA - SANCHEZ, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrati ve Law Judge F. Scott Boyd, of the Division

of Administrative Hearings, conducted the final hearing in this

case in West Palm Beach on January 8 and 9, 2019, and via video

teleconference at sites in West Palm Beach and Tallahassee,

Florida, on February 22, 2019.

APPEARANCES

For Petitioner: Christina Michelle Smiekle, Esquire

Ross Daniel Vickers, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Julie Gallagher, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent engaged in

sexual misconduct in the practice of medicine, in violation of

section 458.331(1)(j), Florida Statutes; and, if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On November 20, 2017, the Flo rida Department of Health

(Petitioner or Department) filed an Administrative Complaint

against Orly Pena - Sanchez, M.D. (Respondent or Dr. Pena - Sanchez).

Respondent disputed material facts alleged in the complaint and

requested an administrative hearing. After a Joint Motion for

Continuance was granted, the hearing began as scheduled on

January 8 and 9, 2019. After a recess, the case was reconvened

by video teleconference on February 22, 2019, to receive the

testimony of Ms. Monica Gonzalez, unavailable o n the earlier

dates.

Two joint exhibits, J - A and J - B, were admitted at the

hearing. Petitioner offered seven additional exhibits:

Exhibits P - 1, P - 2, P - 4, P - 5A, P - 5B, P - 6 , and P - 7, all of which

were admitted. Exhibit P - 1 was admitted over objection that it

was hearsay, because it was found to be a record of regularly

conducted business activity, but only for those portions of its

contents that reflected direct observations of the counselors or

recorded statements of Patient H.P. - B. made to the counselors for

purposes of medical diagnosis or treatment. The balance of that

document, as well as Exhibit P - 5A, a police interview of Patient

H.P. - B., were admitted with the understanding that they were

hearsay, and so could not alone support findings of fact, but

could be used only to supplement or explain other competent

evidence. Petitioner also offered the live testimony of Patient

H.P. - B. (the complainant); R.P., Patient H.P. - B. ' s sister;

Detective Frank Milow of the Palm Springs Police Department; and

Ms. Mo nica Gonzalez, a victim ' s services therapist for Palm Beach

County ; as well as the telephone testimony of Dr. Katina

Bonaparte, formerly the chief medical officer at FoundCare, Inc.

(FoundCare) , a nonprofit Federally Qualified Health Center.

Respondent off ered five exhibits. Page 6 of Exhibit R - 3,

Exhibit R - 4 ( with the exception of page 8) , and Exhibit R - 7 were

admitted. Petitioner ' s objections to Exhibits R - 5 and R - 6, a

polygraph report and the curriculum vitae of the polygraph

examiner, were sustained, and they were not admitted. Respondent

testified on his own behalf and presented the testimony of

Ms. Duvis Vasquez, Respondent ' s wife; Mr. Charles Cox,

investigations manager at the Department of Health; and three

employees from FoundCare -- Dr. Oneka Marr iott, a pediatrician and

chief medical officer; Mr. Rik Pavlescak, chief operating

officer; and Ms. Ivett e Ortiz, medical assistant and X - ray

technician.

The final volume of the three - volume T ranscript was filed

with the Division of Administrative Hearin gs on March 5, 2019.

After a motion to extend the time for filing was granted, both

parties timely filed proposed recommended orders by April 1,

2019, which were considered in the preparation of this

Recommended Order. Citations to statutes and administr ative

rules are to the versions in effect in May 2017, except as

otherwise indicated.

FINDING S OF FACT

1. The Department and Board of Medicine are charged with

regulating the practice of medicine in the State of Florida,

pursuant to section 20.43 and chap ters 456 and 458, Florida

Statutes.

2. Dr. Pena - Sanchez is licensed to practice medicine in

areas of critical need within the State of Florida, having been

issued license number ACN 232.

3. Dr. Pena - Sanchez went to medical school in Colombia, was

first l icensed in Puerto Rico, and has been licensed to practice

medicine in Florida in areas of critical need since 2006.

Dr. Pena - Sanchez is subject to the jurisdiction of the Board of

Medicine. He worked for the Florida Department of Corrections in

a St. Luc ie Health Clinic from 2008 to 2010 , and in a clinic in

Okeechobee until June of 2012, when he joined FoundCare, a

federally qualified health center, in West Palm Beach.

4. In August of 2013, FoundCare instituted a Medical

Provider Chaperone Policy. The policy provided, among other

things, that any clinical provider conducting a physical

examination of a patient of the opposite sex had to have a

chaperone present during the exam and that the medical assistant

had to be present until the physical examinat ion was complete.

Dr. Bonaparte, Dr. Pena - Sanchez ' s supervising physician,

counseled him on the policy.

5. Over a period of approximately five years, Patient

H.P. - B., a 47 - year - old female, saw Dr. Pena - Sanchez for treatment

at FoundCare.

6. In early 201 7, FoundCare issued a standing order to

staff requiring routine testing for HIV and hepatitis C under

Center for Disease Control guidelines in order to comply with the

terms of a focus grant FoundCare had received through the Gilead

Foundation.

7. On Apri l 24, 2017, Patient H.P. - B. presented at

FoundCare for a well - woman examination, including a PAP smear and

other routine testing for laboratory analysis. Patient H.P. - B.

had specifically requested that Dr. Pena - Sanchez conduct these

tests, even though usu al FoundCare practice was to have a female

doctor conduct them. She testified that she requested him

because he had been her doctor for several years, she believed he

was a good doctor, and she trusted him. Dr. Pena - Sanchez

conducted the tests in the pre sence of Ms. Yvette Ortiz, his

medical assistant. Patient H.P. - B. was scheduled for a follow - up

appointment a few weeks later .

8. On or about May 15, 2017, Patient H.P. - B. presented to

Dr. Pena - Sanchez at a scheduled appointment to discuss the blood

work and procedure results. Ms. Ortiz checked H.P. - B. ' s vital

signs and then left the room. Then Dr. Pena - Sanchez came in and

informed Patient H.P. - B. of the test results, telling her first

that she was not HIV positive. This upset her, because she had

not specifically authorized that test and believed Dr. Pena -

Sanchez had no authority to conduct it. No one had informed

Patient H.P. - B. that FoundC are had implemented the new policy

requiring AIDS/HIV testing as part of a well - woman examination.

9. During th e appointment, Patient H.P. - B. informed

Dr. Pena - Sanchez that she had pain in her side and requested that

he examine the area. Patient H.P. - B. testified that at first ,

Dr. Pena - Sanchez did not respond and she had to ask him several

times what he was going to do about her pain.

10. Dr. Pena - Sanchez, sitting on a stool, then asked

Patient H.P. - B. to stand in front of him and indicate the

location of the pain. Patient H.P. - B. stood in front of

Dr. Pena - Sanchez and indicated her side.

11. Patient H.P. - B. t estified that she was facing away from

Dr. Pena - Sanchez, as he had directed, when he reached up and

grabbed her above the hips on each side and pulled her down to

sit on his lap. She testified that he began rubbing her back and

that she tried to get up, b ut he pulled her back down. She said

he then moved his hands around and started to rub her breasts, so

she spanked his hands, jumped up, and asked him where the nurse

was. She said that she then went back to sit in her chair. She

testified that he came over to her, unzipped his pants, pulled

out his penis, and told her that she was going to have sex with

him or give him oral sex. She said that she told him no, but

that Dr. Pena - Sanchez took her hand, made her touch his penis,

and asked her if his penis was big enough, or something similar.

She said she clearly saw the color of his boxers, which were navy

blue with white, black, and red or maroon colored designs. She

testified that she asked for his phone number twice, wanting to

later call his wife, bu t he would not give it to her. She

testified he then suddenly stopped his behavior, went back to his

chair , and acted as if nothing had happened, saying he was going

to order refills on her prescriptions.

12. Patient H.P. - B. testified that she left witho ut

reporting the incident to anyone at FoundCare, but called her

sister and told her what had happened as soon as she got to her

car. She said she went to her job as a home health care aide,

where the wife of her patient told her she needed to report the

incident to the Palm Beach County Division of Victim Services

hotline, which she did the next morning. She reported the

incident to Detective Carpentier at the Palm Springs Police

Department that same day, but did not write a statement,

preferring to be r ecorded. About a week later , she returned to

the police station to provide a sworn taped statement to

Detectives Milow and Hudson. She was referred by the police for

counseling and began talking with Ms. Gonzalez, a therapist at

the Palm Beach County Div ision of Victim Services, on June 15,

2017.

13. After the Palm Springs Police Department found no

probable cause for criminal charges, Patient H.P. - B. contacted a

civil attorney, w ho later sent a letter to FoundC are asking them

to preserve evidence. She filed a written statement with the

Department on September 1, 2017, and was interviewed later that

month by Investigator Cox.

14. When Patient H.P. - B. told her story to these various

people, she was not always consistent. 1/ It is not easy to

communicate with Patient H.P. - B. Even during the final hearing,

questions addressed to her needed to be repeated and answers she

gave were sometimes unclear. Some inconsistencies involved minor

details, others more substantial points.

15. Patient H.P. - B. was cl early confused as to some of the

details about which she was absolutely adamant at hearing,

including the date of her examination prior to the lab tests.

Detective Milow recorded that she told him that the appointment

was the week of May 8. She repeatedl y insisted at hearing that

the date was May 2. FoundCare records indicate that it was in

fact on April 24. While a mistake as to the date something

occurred is not in itself either unusual or significant, her

unshakeable conviction on the point detracts from the weight that

her own confidence might otherwise have given to other portions

of her testimony about which she was equally certain.

16. After Patient H.P. - B. ' s initial telephone call to the

hotline and counseling service a day after the examinatio n,

Ms. Earlene Boone wrote that Patient H.P. - B. reported that she

had asked Dr. Pena - Sanchez to examine her left side. Detective

Milow ' s report also said she had experienced pain on her left

side. Investigator Cox wrote in his report that she told

Dr. Pe na - Sanchez that the pain was on her right side. In her

testimony at hearing, she was absolutely sure that the pain was

on her right side and that she never told Ms. Boone or anyone

else otherwise.

17. In her initial intake assessment for counseling,

Pati ent H.P. - B. told Ms. Gonzalez that Dr. Pena - Sanchez " pulled

down his pants " and then pulled out his penis. At hearing, she

testified that he unzipped his pants to pull out his penis.

18. Patient H.P. - B. told Detective Milow that she could n o t

get the inc ident out of her mind and kept seeing his boxers and

his penis, and told Ms. Gonzalez that she kept having " visions "

of his penis and boxers. Later, however, she could not tell

Investigator Cox if Dr. Pena - Sanchez was circumcised or not,

saying, " I didn ' t see it [ his penis] that good. "

19. Patient H.P. - B. told Ms. Gonzalez that when the

incident was over, Dr. Pena - Sanchez said, " I ' m done with you , "

and that a nurse walked in and that is when Dr. Pena - Sanchez

suddenly acted like nothing had happened. But Patient H.P. - B.

never again said that anyone came into the room in her report to

Detective Milow or at hearing. Ms. Ortiz testified that she did

not go back into the room.

20. Patient H.P. - B. told I nvestigator Cox that after the

assault, " I ran out of the room. " However, she testified at

hearing that she stayed in the room after the assault because she

wanted to make sure Dr. Pena - Sanchez was going to send her

prescriptions.

21. Patient H.P. - B. testified that she did not see anyone

when she left the room and that she was crying. She reiterated

later in her testimony that " tears was rolling. " Ms. Ortiz

testified that when Patient H.P. - B. left, she saw her in the

hallway, that they made eye contact, and that Patient H.P. - B. was

not crying and did not seem upset.

22. Patient H.P. - B. told Detective Milow on May 25, 2017,

ten days after the appointment, " When I left there I went to the

pharmacy " to pick up her medications, including the pain pills,

but the pharmacy informed her that no pain pills had be en

prescribed. Later, at hearing, Patient H.P. - B. tes tified that

when she left FoundC are , she immediately called her sister. She

testified that after that , she went to work and picked up the

prescriptions the following day or the day after.

23. Althou gh Patient H.P. - B. was consistent in her

allegations that Dr. Pena - Sanchez groped her, exposed himself,

and demanded sex from her, thes e many discrepancies in Patient

H.P. - B. ' s testimony as to the details and timing of the

surrounding events raise troubles ome questions as to her

testimony. While it may be only that Patient H.P. - B. was

confused or no longer remembered the exact course of events, the

lack of precision in her accounts significantly detracts from the

weight of the evidence.

24. Dr. Pena - Sanc hez testified that before the date of the

incident , Patient H.P. - B. had flirted with him and made him

uncomfortable. He said that he told his assistant, Ms. Ortiz,

about this and asked her to always be present when he was seeing

Patient H.P. - B. He stated that Patient H.P. - B. had specifically

requested he perform the PAP smear. He testified that on May 15,

2017, he gave Patient H.P. - B. the test results and that she

complained of pain. He testified he did rub her back through her

clothing for diagnostic p urposes, but never touched her breasts.

He said that she was standing the entire time and he never pulled

her onto his lap. He said she asked for his cell phone number,

but he would not give it to her. He denied ever exposing

himself, asking her for sex , or making her touch his penis. He

testified that he did not own any boxer shorts that were navy

blue with black and white and red or maroon colored designs. He

completely denied that he ever acted unprofessionally.

25. The testimony of Dr. Pena - Sanch ez was difficult to

understand at times because he is not fluent in English. His

testimony did not hold together well, and he was not completely

credible. There were inconsistencies between the records of his

interview by Detective Milow, his deposition testimony, and his

testimony at hearing.

26. One thread in the testimony of Dr. Pena - Sanchez

involved flirtatious behavior on the part of Patient H.P. - B. In

his interview with Detective Milow, and at hearing, Dr. Pena -

Sanchez said that Patient H.P. - B. ha d been acting " in a sexual

attitude " towards him prior to the laboratory tests appointment

and that this made him uncomfortable. He testified that he told

Ms. Ortiz about this and directed her always to be present

whenever he was with Patient H.P. - B. Yet Ms. Ortiz had only the

vaguest recollection of anything like this, and it is undisputed

that Ms. Ortiz was not in the room during the results

appointment.

27. It seems curious, if Dr. Pena - Sanchez was concerned

enough about this flirtation to identify Patient H.P. - B. to

Ms. Ortiz and direct that she not leave them alone together, that

when later asked by Detective Hudson, he initially claimed he did

not even recognize Patient H.P. - B. ' s name. After seeing Patient

H.P. - B. ' s picture, he described the resu lts appointment i n

detail. He told Detective Milow that she was laughing and

flirting with him when she asked for his phone number at the

results appointment. Yet at hearing, he testified that she was

not flirting with him at that time.

28. While Dr. Pe na - Sanchez maintained that he was

completely professional throughout the results appointment, his

testimony as to certain details varied. He indicated at one

point that he was sitting on the stool during the examination,

and , at another point , that he was standing when he examined

Patient H.P. - B. At hearing (perhaps, as Petitioner suggests,

aware of his prior statements) , he testified he was both sitting

and standing during the examination.

29. At one point during the hearing, he testified that

Patient H.P. - B. never lifted her shirt during the appointment,

and said that if she had done so , he would have had to bring in a

medical assistant, while later he indicated she did lift up her

shirt, but that he palpated the area only through her clothing:

" She li ft, but I didn ' t Î when Î look -- and then go down and I

touch over her - Î the clothes. "

30. He testified consistently that he owned no paisley

underwear, but indicated at one point that he had only gray and

black, while at another point that he owned only gray and blue.

Ms. Vasquez also testified that her husband owned only black and

gray boxers. However, she fails to provide the impartial,

independent perspective that sometimes serves to corroborate one

side or the other between two completely irre concilable versions

of events. In the end, the color of the underwear simply becomes

another parallel, but peripheral, dispute of fact between the

parties, and provides no basis for resolution.

31. There is no evidence that Dr. Pena - Sanchez has ever h ad

discipline imposed on him in connection with his professional

license in Florida or any other state.

32. Revocation or suspension of Dr. Pena - Sanchez ' s

professional license would have a great effect upon his

livelihood.

CONCLUSIONS OF LAW

33. The Div ision of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to sections 456.073(5), 120.569, and

120.57(1), Florida Statutes (2018) .

34. The Department has authority to investigate and file

administrat ive complaints charging violations of the laws

governing the practice of medicine. § 456.073, Fla. Stat.

35. A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t

of Banking & Fin. v. Osborne Stern & Co. , 670 S o. 2d 932

(Fla. 1996)).

36. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

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 must

be precise and explicit and the witnesses

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 established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

37. Disciplinary statutes and rules " must always be

const rued strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estat e , 592 So. 2d 1136 (Fla. 1st DCA 1992).

38. Respondent is charged with engaging in sexual

misconduct in the practice of medicine, in violation of section

458.331(1)(j). At the time of the incident, this section

prohibited:

Exercising influence within a patient -

physician relationship for purposes of

engaging a patient in sexual activity. A

patient shall be presumed to be incapable of

giving free, full, and informed consent to

sexual activity with his or her physician.

39. This is a difficult case. Pat ient H.P. - B. was

consistent in her basic accusations that Respondent pulled her

onto his lap, groped her breasts, exposed his penis and forced

her to touch it, and solicited her for sexual acts. Respondent

was also consistent in his denials. Both had cer tain

difficulties in communicating , and each had inconsistencies in

their testimony. The burden is on Petitioner, however.

40. Patient H.P. - B. was confused at times during her

testimony. It is possible that at least some of the inconsistent

details amon g Patient H.P. - B. ' s various versions of what happened

did not reflect confusion, fabrication, or changes in her

testimony but rather mistakes of others in telling or recording

what she meant to say. In any event, these same factors,

reflected in the evide nce as a whole , make it impossible to say

that the events were distinctly remembered or were presented with

the level of precision and clarity needed to meet t he requisite

standard of proof.

41 . Petitioner failed to prove by clear and convincing

evidence that Respondent engaged in sexual misconduct in

violation of section 458.331(1)(j).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Health,

Board of Medicine, enter a final ord er dismissing the

Administrative Complaint against Dr. Orly Pena - Sanchez.

DONE AND ENTERED this 1 9 th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administr ative 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 1 9 th day of April , 2018 .

ENDNO TE

1/ Documents and testimony regarding inconsistent out - of - court

statements made by Patient H.P.B. are not hearsay, as they are

being considered not to prove the truth of those assertions, but

only as impeachment.

COPIES FURNISHED:

Christina Michelle Smiekle, Esquire

Ross Daniel Vickers, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Julie Gallagher, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Roa d

Tallahassee, Florida 32308

(eServed)

Louise Wilhite - St Laurent, Gen eral Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Florida Departme nt of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 325 3

(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.