20-002098PL Department Of Health, Board Of Medicine vs. Subhash Gupta, M.D. Status: Closed Recommended Order on Friday, December 18, 2020.

Summary: The Department failed to prove Respondent engaged in sexual misconduct concerning his patient by clear and convincing evidence. The Administrative Complaint should, therefore, be dismissed.

section 456.072(1)(v), Florida Statutes (2019); and , if so, what is the

appropriate sanction.

P RELIMINARY S TATEMENT

On January 27, 2020, the Department of Health , Board of Medicine

(“Petitioner” or “Department”), issued an Administrative Complaint

(“Complaint”) against Subhash Gupta, M.D. (“Dr. Gupta” or “Respondent”), a

medical doctor. The Complaint charged Respondent with sexual misconduct

in violation of section 456.072(1)(v). Respondent disputed material facts

alleged in the Complaint and requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings , and a

final hearing was set for June 25, 2020. After one joint continuance and the

granting of Petitioner’s Unopposed Motion to Change Location of the Final

Hearing to a Remote Zoom Hearing, filed August 10, 202 0, the final hearing

was rescheduled for August 25, 2020 , at 9:00 a.m. by Zoom conference.

Prior to the final hearing, the parties filed a Joint Pre - h earing

Stipulation, in which they stipulated to certain facts. To the extent relevant, the parties' stipu lated facts have been incorporated in the findings below.

At the hearing, Petitioner presented the testimony of S.L., the patient in

this matter, and Kenneth Burke, M.D. Petitioner’s Exhibits B, C, and E were

admitted into evidence, without objection. Th e objection to Exhibit A was

sustained , and Petitioner did not submit its Exhibit D into evidence.

Respondent testified on his own behalf and also presented the testimony of Ms. Elisa Ramirez. Respondent's Exhibit 1 was admitted into evidence.

Respondent’s Exhibit 2 was not offered into evidence. Joint Exhibits A and B

were also admitted into evidence.

The Transcript of the final hearing was filed on September 10, 2020. The

parties timely filed proposed recommended orders, which have been

considered in pre paring this Recommended Order. Citations to statutes and

administrative rules are to the versions in effect in September 2019, except

as otherwise indicated. Hearsay evidence was only considered to supplement

or explain other competent evidence and was not used to support a finding of

fact , unless it would be admissible over objection in a civil action, pursuant to

section 120.57(1)(c) , Florida Statutes .

F INDINGS OF F ACT

Stipulated Facts

1. The Department is the state agency charged with regulating the

pra ctice of medicine in Florida, pursuant to s ection 20.43 and c hapter s 456

and 458, Florida Statu t es.

2. At all times material to this proceeding, Respondent was a licensed

medical doctor in the State of Florida, having been issued license number

ME 43566. R espondent's address of record with the Department is 601 East

Sample Road, Suite 105, Pompano Beach, Florida 33064.

3. Respondent, at all times material to this case, had medical staff

privileges at North Broward Hospital located at 201 East Sample Road, P ompano Beach, Florida 33064. Respondent, at all times material to this

case, also worked at Broward Specialty Group located at 4515 Wiles Road, Suite 201, Coconut Creek, Florida 33073.

4. On or about September 7, 2019, S.L. presented to the emergency room

at North Broward Hospital with symptoms of colitis of the sigmoid colon. S.L. was consulted by the attending physician to attend to her as her gastroenterologist.

5. Respondent performed an abdominal exam on S.L. on September 7,

2019. During the exam, Resp ondent palpated S.L.’s abdomen.

6. On or about September 8, 2019, Respondent performed another

abdominal exam on S.L. During Respondent’s examination, he palpated S.L.’s

abdomen.

7. On or about September 13, 2019, S.L. presented to Broward Specialty

Group for a follow - up examination. Respondent performed another abdominal

exam on S.L. at that time.

8. A physician intentionally touching a patient’s breasts is not within the

scope of an abdominal examination. Intentionally touching a patient’s breasts is outs ide the scope of generally accepted abdominal examination performed

by a gastroenterologist.

9. Respondent had no medical reason to touch S.L.’s breasts on

September 7, 2019; September 8, 2019; and/or September 13, 2019.

10. No physician may engage in sexu al misconduct with his or her patient.

Additional Findings of Fact

11. Respondent, 72 years old, was born in 1947 and grew up , and went to

school , in a small village in India . He wanted to become a physician because

there was no doctor in his village. Dr. Gupta then moved and graduated from

medical school in Rajasthan. 1 He completed his residency and two years of a

fellowship in gastroenterology in Pittsburgh, and his training concluded in 1983.

12. Respondent has lived in South Florida since 1984. He has b een

married to his wife for 44 years

2 and she is also a physician. He has three

children, ages 42, 36 , and 32, and all are also physicians. He has six

grandchildren. He lives with his wife, his son , and four grandchildren.

13. When his brother’s wife unexp ectedly died, Dr. Gupta and his wife

began caring for his brother’s three children, who then were 2, 6 , and 9.

Those children are now grown, with two being physicians and one an

attorney. All practice in South Florida.

1 The hearing T ranscript incorrectly indicated Pakistan.

2 The hearing Transcript incorrect ly indicated 34 years.

14. Dr. Gupta practices in both the o ffice and North Broward H ospital. He

has medical staff privileges in gastroenterology at Broward Health North and

has held those privileges since 1984. His privileges have been renewed every

two years since 1984.

15. Dr. Gupta described an abdominal exam a s a four - quadrant exam

where he feels for the spleen and liver in the left upper quadrant. Dr. Gupta

also asks patients to take a deep breath to facilitate feeling the spleen in the left upper quadrant and to facilitate feeling the liver in the right upper

quadrant.

16. Dr. Gupta has performed tens of thousands of abdominal exams

during his more than 40 - year career. Dr. Gupta performs abdominal exams in

a routine fashion , and there is no difference between the abdominal exams he

performs in the office and i n hospital settings. The exams are so routine for

him that they are just automatic.

17. Dr. Gupta had no independent recollection of S.L., and his testimony

was based both upon his routine pattern of practice over 40 years and S.L.’s

medical records.

18. R espondent first provided care to S.L. on September 7, 2019, at North

Broward H ospital , upon request for gastroenterology consultation.

19. S.L. was on a regular level floor in a double - bedded room.

20. Respondent’s routine practice is to review the patient ’s chart and

presentation and speak with the nurse involved with the patient’s care to

learn about any complaints. Respondent then invites the nurse to join him

during the examination, and, if free, the nurse will join him in the patient’s

room.

21. Respon dent’s practice is to always leave the hospital door open when

he sees a patient in the hospital. This is to allow entry and exit by staff related to care for the patient and/or the other patient in the room, as well as

their respective family members.

22. At no time during this visit did Respondent touch S.L.’s breasts, as he

testified:

Q. Since you have no independent recollection of

the exam, how can you be sure you didn’t touch her

breasts?

A. It doesn’t matte r whether there’s recollections o r

not or w hether chart or not. I don’t touch patient’s

breasts.

23. Respondent next provided care to S.L. on September 8, 2019, at North

Broward H ospital, and, again, the door remained open for the duration of the

visit. Respondent entered the room, asked S.L. abou t the progress of her

symptoms , and then performed the same four - quadrant abdominal

examination and answered any questions.

24. Respondent described the left upper quadrant of a patient as where

the spleen lies. When a patient takes a deep breath, it expan ds the chest wall

and lowers the diaphragm, which moves the spleen , so the edges can be felt.

The right upper quadrant is where the liver lies and with deep inspiration,

the chest expands and lowers the diaphragm and moves the liver, so the liver

edge and tenderness can be felt.

25. Respondent did not touch S.L.’s breasts on September 8, 2019. Even

though he does not specifically recall the visit, he is certain that he did not touch S.L.’s breasts. As he testified:

Q. Again, how can you be certain if you do n’t really

remember this visit?

A. I am certain because it’s not part of the

examination, o r [sic] it’s not me. There’s no reason

to touch S.L.’s breast. Breast is not a part of the examination. And I don’t need any chart, or I don’t need any recollection for that exam.

26. Respondent next evaluated S.L. at his office, Broward Specialty

Group, on September 13, 2019, during a follow - up examination. Respondent

was accompanied by his scribe, Ms. Elisa Ramirez, for the entirety of the

visit. The examination t ook place in a small exam room. During the exam,

Ms. Ramirez was located approximately five or six feet away from

Respondent. Ms. Ramirez testified that she is curious, observant, and wants

to go to medical school upon her graduation from college in Decemb er 2020

with a degree in biology. She closely watches and listens to Respondent, asks

a lot of questions, and Respondent teaches her.

27. At the time of this third visit, S.L. was doing well and had been

discharged from the hospital. Respondent performed a n examination similar

to the examinations he performed in the hospital. As he testified, at no time

during this visit on September 13, 2019, did Respondent touch S.L.’s breasts:

Q. During this visit, did you touch Patient S.L.’s

breast?

A. Absolutely not. I did not touch her breast neither

on the 7th, 8th, or 13th. It is not part of the

examination, and it’s not me. I am a Hindu

person . I go to th e temple. I am on the board of

trustees at the temple. And to -- touching a breast is

demeaning, disgraceful a nd unsocial [ sic ] . I have

beautiful family. I have loving wife. I have lovely

daughter. I have granddaughters Absolutely not.

It’s not me.

28. Respondent repeatedly and consistently stated that he did not touch

S.L.’s breast and that such is not part of the gastroenterological examination

or evaluation:

Q. Dr. Gupta, we noted you testified you do not remember the actual three visits with this patient.

But just for clarity, can you let the Court know whether or not you touched this patient’s breasts?

A. I did not touch this patient’s breasts .There is

no way I can demean or I can degrade any woman. I did not touch Ms. S.L.’s breast on 7th, 8th or 19 th [ sic ] . I am sorry. I did not do it, and I don’t do

these things.

29. As mentioned in paragraph 26 abov e, Ms. Ramirez serves as

Respondent’s scribe. In addition to her note - taking duties, she sometimes

performs medical assistant duties. These consist of helping get patients ready

and in a room, and asking them questions in advance of Dr. Gupta’s entering

th e room to see the patient. She then goes into the room with Respondent to

document what the patient says, what Dr. Gupta says, and creates a medical

note from the conversation and examination.

30. Ms. Ramirez specifically recalls the visit of S.L. on Sept ember 13,

2019. She specifically remembers S.L., the exam room she was in, and the

shirt S.L. was wearing.

31. Ms. Ramirez specifically described the layout of the examination room,

which was room number three. Ms. Ramirez testified that she, Respondent,

a nd S.L. were in an L - shaped configuration in the room. She was standing at

a counter in the room, with her laptop on the counter, Respondent was seated

on a stool, and S.L was in an exam chair.

32. Ms. Ramirez testified that she watched the entire time Res pondent

performed the physical exam of S.L. She was located approximately five to six

feet away from S.L.

33. Ms. Ramirez testified that at no time did she see Respondent touch

S.L.’s breasts. At no time during the examination did she see Respondent inappr opriately touch S.L. Ms. Ramirez stated that, based upon her

experience with Respondent, it was a pretty normal interaction and there

was nothing out of the ordinary. She admitted that she was not watching at some points during the visit, but that occurred only after Respondent had

completed his physical exam of S.L.

34. S.L.’s testimony tells a different story. She first saw Respondent on

September 7, 2019, while an inpatient at North Broward Hospital. S.L.

testified that her room was near the nurse’s stat ion. During Respondent’s

examination, she had a roommate (another patient) present in her room.

35. S.L. testified that she did not tell anyone that Respondent had

allegedly touched her breasts during the examination that day.

36. S.L. saw Respondent again , in the same hospital room, on the

following day of September 8, 2019. Again, the other patient was present in a

bed next to her.

37. S.L. testified that Respondent touched her breasts during this second

abdominal examination. S.L. testified that she did not react in any way to

Respondent’s examination and did not tell anyone about any alleged

inappropriate touching by Respondent.

38. S.L. testified that she was told she needed to follow - up with a doctor in

three to five days. She stated that she selected Respondent to follow - up with

because he was her doctor in the hospital and she believed it would be nearly

impossible to find a nother gastro - intestinal (“GI”) doctor in the short time

frame.

39. S.L. testified that , at the time of examination in the offic e on

September 13, 2019, Respondent entered the room with another “girl” who had a laptop. S.L. testified that , during her visit with Respondent on

September 13, 2019, at his office, she did not specifically observe the other

person in the room (Ms. Ramire z) for the entire time during the visit. She did

not testify that the assistant was not in the room the entire time. S.L.

testified that , as of the date of her appointment on September 13, 2019, she

did not report to anyone that Respondent had touched her breasts during her

first, second, or third examinations.

40. S.L. testified that , when she was in the hospital, her room door

remained open on both occasions that Respondent examined her. She stated that nursing staff and others would come see her througho ut the day while

she was a patient in that room. S.L. testified that nursing staff also would

come in during the day to see the other patient , who was in the room with

her. S.L. testified that, from her bed, she could see out of the door.

41. S.L. testifie d that one day prior to seeing Respondent at his office on

September 13, 2019, she saw her primary care physician and did not inform

him of any alleged events in the hospital. S.L. testified that her primary care

physician offered her three GI physicians t hat she could go and see. Her

primary care physician was almost confrontational about her seeing one of

the three GI physicians he recommended. S.L. testified that she had told her

primary care physician that notwithstanding the names he had provided, she was going to see Respondent on the following day.

42. S.L. did not contact any of the three to see if they would be available

for a consultation that next day or shortly thereafter. She did state that she

sought an appointment with one of the three recomm ended GI physicians

after her third visit with Respondent on September 13, 2019.

43. S.L. subsequently saw her primary care physician, Kenneth Burke ,

M.D., and , for the first time, discussed the alleged encounters with

Respondent.

44. S.L.’s version of her examinations by Dr. Gupta is quite different from

Respondent’s account. She testified that during the course of her abdominal

examination on September 7, 2019, Respondent lifted her camisole to expose

her abdomen and palpated her abdomen in a circular dir ection, starting with

the upper left quadrant and working towards the lower left side, then the lower right quadrant and working towards the upper right quadrant.

Respondent, she said, next placed his hand underneath S.L.’s camisole and underneath the elas tic of her shelf bra and placed his bare hand on her bare

left breast and, under the guise of continuing his examination, asked her to

take a breath.

45. Respondent then moved his hand to S.L.’s right breast and asked her

to take another breath, she state d. She claims she felt uncomfortable when Respondent touched her breasts, but trusted Respondent and assumed he

needed to touch her breasts as a part of her abdominal examination. She did

not report Respondent’s alleged touching of her breasts to anyone on that

day.

46. S.L.’s account of the examination on September 8, 2019, was identical

to the previous day’s examination, with the exception of Respondent first

placing his hand on her right breast while asking her to take a breath, then

moved to her left br east with a similar request that she take a breath. She

did not report Respondent’s alleged touching of her breasts to anyone on that

day.

47. S.L.’s account of her visit to Respondent’s medical office on

September 13, 2019, was similar to her account of t he two hospital visits by

Dr. Gupta on September 7 and 8, 2019. She was not in pain on that date. She

again testified that Respondent performed his examination by reaching

under her clothing, and, during its course, first placed his hand on her bare right breast and asked her to take a breath, then performed the same

touching o f her bare left breast and asked her to take a breath.

48. She noted that Ms. Ramirez was in the room during the September 13,

2019, examination. She believed that Ms. Ramirez could n ot see the alleged

improper touching because Respondent’s hand was under S.L.’s clothes

throughout the abdominal examination.

49. S.L. testified that, after the September 13, 2019, examination, she felt

uneasy about Respondent’s conduct and no longer beli eved his behavior was

appropriate in a medical examination.

50. She confirmed that she then spoke with Dr. Burke who, after hearing

her account of Respondent touching her breasts during an abdominal examination, suggested she file a complaint with the Depa rtment.

51. Although he could not recall the exact details of his examination of

S.L., due to the large number of abdominal examinations he regularly performs, Dr. Gupta’s account of his examinations of S.L. was clear, concise,

credible, and given without hesitation. His record as a physician, as

emphasized by his testimony at hearing, supports that touching a woman’s

breasts during an abdominal examination is not acceptable and not part of

the routine four - quadrant examination that he has performed thousan ds of

times.

52. Moreover, Ms. Ramirez was present during the September 13, 2019,

examination of S.L. Her testimony was, similarly, clear, concise, credible, and

given without hesitation. While she is a loyal employee of Dr. Gupta’s and

hopes to go to medi cal school upon her graduation from college, no evidence of

her being untruthful or of fabricating any part of her account was offered,

other than an unsupported conclusion that she stands to lose in this situation

if she were to admit that Respondent impr operly touched S.L.’s breasts

during an abdominal examination.

53. S.L.’s testimony also was clear, concise, credible, and given without

hesitation. She recalled the facts as she presented them as if the events had

just happened, making this a clear case o f “she said, he said.”

C ONCLUSIONS OF L AW

54. The Division of Administrative Hearings has personal and

subject matter jurisdiction in this proceeding pursuant to sections 120.569

and 120.57(1).

55. This is a proceeding whereby Petitioner seeks to revoke R espondent’s

license to practice medicine. Petitioner has the burden of proving the

allegations in its Complaint by clear and convincing evidence. Reich v. Dep’t

of Health , 973 So. 2d 1233, 1235 (Fla. 4th DCA 2008) (citing Dep’t of Banking

& Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996)); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Supreme Court of

Florida:

[C] lear 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 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 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, “it seems to preclude evidence that

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

(Fla. 1st DCA 1991).

56. Because the regulation of h ealth p rofessions and o ccupations,

section 456.072(1)(v), authorizes suspension o r revocation of a professional

license, it is penal in nature and must be strictly construed in favor of the

licensed physician. Breesmen v. Dep’t of Prof’l Reg., Bd. of Med. , 567 So. 2d

469, 471 (Fla. 1st DCA 1990); Munch v. Dep’t of Prof’l Reg . , Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

57. A hearing involving disputed issues of material fact under

section 120.57(1) is a de novo hearing, and Petitioner's initial action carries

no presumption of correctness. § 120.57(1)(k), Fla. Stat. ; Moore v. Dep’t of

HRS , 596 So. 2d 759 (Fla. 1st DCA 1992).

58. The grounds proving Petitioner’s assertion that Respondent’s license

should be disciplined must be those specifically alleged in the Complaint.

See, e.g. , Trevisani v. Dep’t of Health , 908 So . 2d 1108 (Fla. 1st DCA 2005);

Kinney v. Dep’t of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v.

Dep’t of Prof’l Reg. , 458 So. 2d 842 (Fla. 2d DCA 1984).

59. Due process prohibits the Department from taking disciplinary action

against a licensee based on matters not specifically alleged in the charging

instrument, unless those matters have been tried by consent. See Shore Vill.

Prop. Owners’ Ass’n v. Dep’t of Envtl. Prot. , 824 So. 2d 208, 210 (Fla. 4th

DCA 2002); and Delk v. Dep’t of Prof’l Reg . , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992).

60. Petitioner charged Respondent under section 456.072(1)(v), which

provides, in relevant 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).

Section 456. 063(1) provides, in relevant part:

(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 patie nt 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 heal th

care profession. Sexual misconduct in the practice of a health care profession is prohibited.

61. Petitioner charges that Respondent engaged in sexual misconduct by

touching or cupping S.L.’s breasts during a medical examination. In order to

prevail, P etitioner must prove by clear and convincing evidence that

Respondent engaged in sexual misconduct by touching, or cupping, S.L.’s

breasts during abdominal examinations on September 7, 8, and 13, 2019.

62. Based upon the testimony given by Respondent and M s. Ramirez, the

only “non - participant” witness to any of the alleged unlawful contact, the

Department has not clearly or convincingly shown that Respondent engaged in sex ual misconduct in violation of s ection 456.072(1)(v).

63. The evidence establishes tha t Respondent performed abdominal

examinations on S.L. consistent with his routine practice of performing

such examinations over the past 40 years of medical practice as a

gastroenterologist. The evidence clearly establishes, as confirmed through the

testim ony of both S.L. and Respondent, that the door to S.L.’s hospital room

remained open for the duration of the examinations by Respondent on

September 7 and 8, 2019. The evidence also clearly establishes that

Ms. Ramirez witnessed the physical examination of S.L. in its entirety during

the office visit on September 13, 2019. Ms. Ramirez testified repeatedly that

nothing out of the ordinary occurred and that she at no time ever witnessed

Respondent touch S.L.’s breasts or act inappropriately. The testimony is also

clear and convincing that the examination witnessed by Ms. Ramirez was

substantially the same as those conducted on September 7 and 8, 2019, in the

hospital.

64. Although Respondent admits that he has no specific recollection of his

encounters with S. L. beyond the medical record, he clearly and credibly

testified that he would have no need to touch a patient’s breast during an

abdominal exam. Moreover, Respondent clearly and credibly testified that at no time did he touch the breasts of S.L. Respondent was consistent in his

denials, and the testimony of Respondent's witness, Ms. Ramirez, was clear

in her detailed recounting of the events of the office visit. Both the testimony

of Respondent and Ms. Ramirez directly dispute the testimony of S.L. The burd en of proof, however, is not on Respondent, but is on Petitioner.

65. While S.L. was a credible witness, her testimony, standing alone, was

not clear and convincing evidence of any sexual misconduct on the part of Dr. Gupta. The undersigned cannot find tha t S.L.'s testimony was clear and

convincing that Respondent touched or cupped her breasts at any time, much less on three separate occasions during three different visits. While this was

S.L.’s testimony, given freely and without reservation, Respondent wa s just

as clear and certain in his denials. Respondent was unequivocal that he does

not touch a patient’s breasts. Moreover, Ms. Ramirez’s testimony, as the only

direct witness to the office visit, and who was watching the totality of the

physical examinat ion at all times, also was equally clear that Respondent

never engaged in any inappropriate behavior. More specifically, Ms. Ramirez

credibly testified that Respondent did not at any time touch S.L.’s breasts

during the examination on September 13, 2019.

6 6. Further supporting the conclusion that Petitioner failed to prove any

improper touching by clear and convincing evidence is an examination of Petitioner’s behavior after each alleged incident. Following her examination

by Respondent on September 7, 2019 , S.L. made no mention to any party of

any alleged inappropriate behavior by Respondent. Instead, she agreed to

again receive care by Respondent on the following day, September 8, 2019.

Then, after allegedly being inappropriately touched by Respondent for the

second time on September 8, 2019, S.L. again failed to report any such issue

to a nurse, staff member , or any other individual. Instead, S.L. elected to visit

Respondent on a third occasion, on September 13, 2019, for outpatient care

following her disc harge from the hospital.

67. Additionally, on September 12, 2019, S.L.’s primary care physician

provided her with the names of three other GIs for outpatient care. S.L.

testified that her primary care physician seemed “almost confrontational,” as he wanted her to see one of the three physicians he had recommended.

However, despite the insistence of her primary care physician, and despite

the alleged two incidences of inappropriate conduct, S.L. neither contacted

any of the three GI physicians for an appoint ment (“I do not recall” whether I

[S.L.] tried to get an appointment with one of the three) nor said anything

about such events to her physician and, instead, chose to present to

Respondent for outpatient care at a third visit.

68. Based upon the totality of the testimony and other evidence produced

at hearing, S.L.’s testimony that she was the victim of sexual misconduct by Respondent is outweighed by the evidence to the contrary. Her testimony,

standing alone, does not constitute clear and convincing evid ence of sexual

misconduct by Respondent.

69. S.L.’s decision to continue to receive care in the hospital and even seek

his continued care after discharge, along with the consistency of the

testimony of Respondent and Respondent's witness, Ms. Ramirez, resu lts in

the undersigned being unable to conclude Respondent engaged in any sexual

misconduct, as alleged. It is impossible to say that the events as alleged in

the Complaint were presented or proven with the precision and clarity

necessary to meet the requi site clear and convincing standard of proof. See

Dep ’ t of Health, Bd . of Med . v. Orly Pena - Sanchez, M.D. , Case No. 18 - 4558PL

( Fla. DOAH Apr. 18, 2018; F la. DOH July 15, 2019).

70. Although there are instances when clear and convincing evidence can

be shown without a corroborating witness, this was not such an instance.

See Dep’t of Health , Bd. of Chiropractic Med . v. Hamed Kian D.C. , Case

N o. 18 - 0263PL ( Fla. DOAH July 27, 2018; F la. DOH Oct. 2, 2018). In this

instance, Respondent had in Ms. Ramirez , a credi ble, corroborating witness

and her testimony is highly credited. The testimony of Dr. Burke, who was

not a witness to any of the alleged acts of Respondent complained of by S.L.,

was not relevant to the issue in this case and , therefore , played no direct r ole

in the determination of the outcome in this matter.

71. Given the direct conflicts of testimony, together with the deficiencies

in the testimony, the lack of a corroborating witness , or other sufficiently

corroborating evidence offered by Petitioner, t he undersigned finds that

Petitioner failed to prove, by clear and convincing evidence, that Respondent

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

sexual misconduct.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Medicine, enter a

final order dismissing the Complaint.

D ONE A ND E NTERED this 18th day of December , 2020 , in Tallahassee,

Leon County, Florida.

R OBERT S. C OHEN

Administrati ve 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 18th day of December , 2020 .

C OPIES F URNISHED :

Amanda M. Godbey, Esquire

Major Ryan Thompson, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Gregory A. Chaires, Esquire

Richard Jay Brooderson, Esquire

Chaires Brooderson & Guerrero, P.L.

283 Cranes Roost Boulevard , Suite 165

Altamonte Springs, Florida 32701

(eServed)

Louise St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3565

(eServed)

Cl audia Kemp, J.D., Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.